ML20082E548

Amicus Curiae Brief on Util 831115 Request for Stay of ASLB 831114 Order Re Intervenor Contact W/Util Employees Scheduled to Testify in OL Hearings

ML20082E548
Person / Time
Site:	Catawba
Issue date:	11/23/1983
From:	Garde B GOVERNMENT ACCOUNTABILITY PROJECT
To:	NRC COMMISSION (OCM)
Shared Package
ML20082E536	List: ML20082E532 ML20082E548 ML20082E550 ML20082E560
References
NUDOCS 8311280232
Download: ML20082E548 (7)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE CO) MISSION 1

In the Matter of )

)  !

DUKE POWER COMPANY ) DOCKET NOS. 50-413 OL .

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) 50-414 OL (Catawba Plant, Units 1 and 2) )

1 BRIEF FOR AMICUS CURIAE THE GOVERNMENT ACCOUNTABILITY PROJECT OF THE INSTITUTE FOR POLICY STUDIES ON DUKE POWER COMPANY'S REQUEST FOR STAY OF ORDES, AS AMENDED, PERMITTING INTERVENOR CONTACT WITH DUKE EMPLOYEES SCHEDULED TO TESTIFY IN THE OPERATING LICENSE HEARINGS I. STATEMENT OF THE CASE On November 17, 1983 the Commissioners denied a request for a stay from Duke Power Company (" Duke" or " Applicant") in -response to their November 15, 1983

, - request for an emergency stay on the implementation of a ruling made by the 1

l Atomic Safety and Licensing Board (ASLB) in the Catawba operating licensing (OL) proceeding on November 10, 1983 and slightly modified by a November 14, 1983 ruling of the Atomic Safety and Licensing Appeals Board (ASLAB). The ruling issued by the ASLB, as amended, provides as follows:

From now-until the ' conclusion of this hearing, neither counsel

, nor responsible officials of Duke Power Company shall instruct its employees who are called witnesses _by the intervenor, Palmetto Alliance,

not to speak to counsel for that intervenor. Any such instruction i previously given shall be withdrawn. Palmetto may contact these i witnesses at reasonable times and places and the witnesses may decide for themselves whether to cooperate with Palmetto. Provided that

The witnesses may be instructed by counsel or responsible officials of Duke not to disclose to Palmetto or its counsel during the course of any off-the-record contact any communication between the witnesses and Dhke counsel bearing upon this licensing proceeding and the issues being litigated therein. Moreover, Palmetto counsel shall refrain from making any inquiry of any witness that directly or indirectly

' solicits information pertaining to the existence of such a cominunication. ,

Provided further that: The foregoing provision does not apply to any statement of underlying fact whether or not that fact was com-municated to Duke's counsel by the witness. See Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981) .

8311280232 831123 PDR ADOCK 05000413 G PDR

In denying the Applicant's request for a Stay the Commisioners requested responses from the parties on the following questions:

1. Is there an attorney-client relationship between Applicant's attorneys and its witnesses, and if so, why?

2. Are Applicant's witnesses "a party" in the context of ABA Disciplinary Rule 7-104?

3. Does the validity of the Boards' orders depend upon whether the witnesses are " clients" or " parties"?

4. Are there any circumstances under which Applicant's witnesses, who are also its employees, simultaneously can be Intervenor.'.s witnesses?

If so, are those circumstances present in this case, and what effect does this have on the validity of the Board's orders?

(Nuclear Regulatory Commission ORDER, November 17, 1983)

The Commission required that all responses should be filed by 4:00 P.M.

on Wednesday, November 23, 1983.

This issue comes to the Commission as a result of the November 10, 1983 ruling on an oral request from Intervenor Palmetto Alliance for access to employees of the Applicant, who are also considered " subpoenaed witnesses" of the intervenor. (Transcript, at ) The Intervenor request came after Intervenor discovered that employees of the Applicant had been instructed not to talk to Palmetto's counsel. (TR, at )E!

2 The ASLB ruling, issued orally, was immediately appealed by the Applicant.-/

A Conference call was subsequently held on November 14, 1983 between the ASLAB, and the parties. The original order by the ASLB was then modified in November 15, 1983 ORDER by the Appeals board. Neither intervenor nor the NRC staff objected to the modification by the Appeals Board.

-1/ Transcript pages relevant to this issue have been submitted to the Commission as an attachment to the Applicant's MOTION FOR STAY, filed November 15,1983 to the Commissioners.

! It should be noted that the approach to the ASLAB was an exsparte communication, as noted by the ASLAB, f or an immediate stay. That was denied.

II. LEGAL ARGUMENT The role of the Amicus in this case is not one of additional legal analysis on this fine point of law. Amicus supports the legal position of Intervenor Palmetto Alliance filed today with the Commission. That position can be summarized as a disavowal of the proposition that the witnesses are " parties,"

and ghe clarification that to the extent that any attorney-client privilege exists it certainly does not preclude interviewing of the witnesses by Palmetto. Finally, Amicus agrees strongly with Palmetto that the public interest in this case lies in the discovery of the truth, and in allowing both sides to search for that truth. Amicus has had extensive debate with the Commission on the wisdom of allowing attorneys for licensees of applicants to participate in investigation / inspection interviews of its employees by NRC staff. That industry proposal was' rejected by the Advisory Committee on Rights of Employees Under Investigation. In this case it is again the employees rights that are, in essence, being debated. Amicus seeks to have the Commission consider the rights of the employees-dn this matter, i

III. DILEMMA 0F DUKE'S WELDING QUALITY CONTROL INSPECTORS The witnesses in this case, offered by Duke and subpoenaed by Intervenor, are specifically a class of welding quality control inspectors, still employed by Applicant at the Catawba facility.

, During the discovery phase of this proceeding Intervenor became aware of an " incident" in which the Duke's welding quality control inspectors raised numerous significant complaints about the systematic downgrading of the quality assurance program. Their complaints included, but were not limited to. deliberate subversion of 10 CFR Appendix B by Duke Management, harassment and intimidation of quality control inspec*. ors, an institutionalized practice of construction and i

Quality Control supervision verbally overriding reported non-conforming conditions (NCI's), a breakdown in the design control system, and worker information about falsification of records, destruction of documents, cheating on qualification tests,

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4 direct interference with workers' contacts to the Commission, substitution of

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unauthorized pr:csdurss for corrget constructi n ccrrectiva cetions in ordrr to meet cost and construction deadlines, and numerous specific hardware concerns which impugn the overall integrity of the construction of the Catawba facility.

These allegations and evidence supporting these allegations are contained in specific detail in several sets of documents provided in discovery to Intervenors, obtained by Amicus through the Freedom of Information Act ("FOIA), and verified during an independent investigation by Amicus eg the welding quality control inspectors' concerns.

Based on the conclusions of a preliminary investigation Anicus requested an investigation by the Office of Investigations in April of this year, by letter to Director Ben Hayes, again in August of this year to Mr. Hayes, in September of this year, as part of Amicus 2.206 petition (see page 41 to 45 of 2.206 Petition, and finally again on October 6 of this year to the Commission.

The requested 01 investigation was announced November 3,1983. The scope of its investigation is to include the concerns raised by the same class of welding quality control inspector The principal source of information for the 01 investi-gation will be the welding quality control inspectors Duke seeks to now contain.

Their written, therefore, irreversible statements provide the most graphic descrip-tion of illegal and intolerable hithnidation of QC inspectors Amicus has ever come across. Their oral testimony in the hearing has been even more devastating for Duke.

Amicus was astounded to discover that Applicant set forth the proposition i

that these witnesses do not have an adversarial relationship with the Company in this matter. There can be no better description of the view of the welding inspectors dilemma than that incorporated in the prefiled testimony of Mr. Gary " Beau" Ross. Amicus urges the Commission to read i

Mr. Ross' testimony and attachments in their entirety, but provides the following statements from his testimony as an example of the Laconsistency of Applicant's assertions with the truth:

Q: Is there anything else you would like to add to your testimony?

A: I feel that Catawba will be safe to operate. I also feel that I, along with most inspection personnel who submitted concerns, have been adversely affected by this submitting of concerns in terms of treatment, promotion potential, or transfer potential. I know in my own case, I have been treated very badly on my evaluations and pay raises. I have received very negative treatment from Joe Willis, Art Allum, and I feel to a degree from L.R. Davison, in the sense of no help on my recourse. I feel I have been discriminated against in violation of 10CFR50 in that my conditions of employment and compensation for employment have been adversely affected by my expressing my concerns of no support from QA management and their not following pro-cedure. I only submitted concerns because I felt we were living a lie, saying one thing in our manual but in reality doing something else. It should be noted that our QA procedures had standards well above industry codes and standards. When we deviated from our standards we never dropped below those industry standards. However, we failed to follow our own QA program, for example, when we did deviate. I submitted concerns for the benefit of Duke Power Company, and not for the benefit of Gary Ross. I submitted concerns knowing that management would probably be miffed at me and I would be blackballed. But being a God-f earing Christian, I had to submit concerns out of honesty. All of my concerns were nc surprise to management because on each conern I had already presented it to my supervisor when it arose in order to prevent it from being a problem. But as usually was the case, my supervision listened to construction and not to me, therefore my only alternative was to document what happened for future reference. I got tired of fighting for the program almost daily.

I have tried to get under new management by applying for transfer but have not been allowed to transfer. I have seen some positions filled that I would like to have had, but no luck. I feel that I am going to be kept on construction and not tranferred to nuclear production until there is no place to go and then I will probably be laid off. I feel this is because of my being vocal on no support and this will be my punishment for being too concerned.

At the present time, things seem to be going pretty much as they should.

I have more hope than I have had for sometime. I do hope that all the harassment, intimidation, and negative treatment I have been subjected to is over but, due to scars I have from being so shabbily and discriminatorily, it makes it hard to believe that I have seen the last of it. The sad I. part is all the pain, mental anguish, discrimination, retaliation, def a-mation of character that I have been subjected to comes ecause of my trying to help Duke luve up to is word, the QA program 3 Amicus believes that Mr. Ross's comments articulately display the dilemma that these workers are ih. we do not believe that thd situation has improved for the t

I work force in general, or these welding inspectors in particular.

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' Testimony of Gary E. Ross filed before the Atomic Safety and Licensing Board in the Catawba OL, p. 7 to 9 , testimony filed as Attachment 1 with Palmetto Alliance.

Th2 cttcchid cffid".vit frca Amicua curmariza3 cpIcific informatian provided within the past three weeks to Amicus which underscores the dilemma applicant's enployees find themselves in. Of particular note is the telephone call from a welding quality control inspector not scheduled to testify who called Amicus requesting a specific legal opinion on the legality and legitimacy of the extensive preparation required of his co-workers. (Attachment 1 a & b)

The case against Catawba under the contention is based on information sub-mitted by employees of Duke Power. Those comments are both specifically and generally the indictment of Duke's Catawba plant and the failure to implement an acceptable Quality Assurance plan. Those workers remain employees of Applicant, and under the direction of its officers in matters relating to this hearing. To ignore the reality of that situation would be to define the question in front of the Commission as a legal exercise. In fact, the request by Palmetto to talk to workers may provide the only opportunity the ALSB has to insure that they hear both sides of the story from the workers -- not just the Company's.

Amicus urges the Commission to, at a minimum, provide an opportunity for an indepth review of the facts underlying the situation now before the Commission.

i IV. ONGOING NRC STAFF EFFORTS REGARDING THE WELDING INSPECTORS INCIDENT As stated before, Amicus has pending a request pursuant to 10 C.F.R. 2.206 before the Commission, there is also an ongoing OIA investigation, and an OI investigation into the very issues raised by the welding inspectors over two years ago.

Although Amicus is optimistic that eventually the NRC will understand the concerns about a quality assurance breakdown that the workers have been trying to raise for years, it is far too premature for a dependence on that effort.

Amicus urges the Commission to read the testimony of Mr. Ross previously

referred to, and to recognize that there are over 40 welding quality control inspectors who have provided similar information, testimony, i

and details about their experiences at the Catawba plant. Over two dozen of them were scheduled to be witnesses in the OL proceeding, although a stipulation among the parties has limited that number.

For those witnesses who have not yet testified the access that Palmette requests, and is entitled to, may be the only avenue through which workers can insure that, in fact, Palmetto's counsel asks the right questions.

Amicu s , through the attached affidavit and information Amfrnc has provided to the various branches of the NRC in this matter, has passed along the message from the workers for relief from the pressure they are under.

Respectfull submitted, h w G-Billie Pirner Garde Director Citizens Clinic GOVERNMENT ACCOUNTABILITY PROJECT 1901 Q St., N.W.

Washington, D.C. 20009 (202) 234-9382 Dated: November 23, 1983 J

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