ML20082J407

Motion for Leave to File Brief Amicus Curiae Out of Time. Brief Would Address Commission 831117 Order Deferring Util 831115 Request to Stay ASLB Rulings Re Intervenor Contact W/ Util Employee Witnesses.Certificate of Svc Encl

ML20082J407
Person / Time
Site:	Catawba
Issue date:	12/01/1983
From:	Cowan B, Wiggin E ATOMIC INDUSTRIAL FORUM
To:	NRC COMMISSION (OCM)
References
NUDOCS 8312020130
Download: ML20082J407 (10)

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S 00CKETED e USNRC UNITED STATES OF AMERICA '83 DEC -1 All :23 NUCLEAR REGOLATORY COMMISSION GFFICE OF SECF T[J

BEFORE THE COMMISSION htpfcf4 In the Matter of  :

DUKE POWER COMPANY, ET AL.  : Docket Nos. 50-413

50-414 (Catawba Nuclear Station,  :

Units 1 and 2)  :

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OUT OF TIME Edwin Wiggin Executive Vice President Atomic Industrial Foritm, Inc.

Of Counsel:

Barton Z. Cowan, Esquire h

g 30 832201 K 05000413 Chairman, AIF Lawyers Committee PDR Ann McClure, Esquire Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 Dated: December 1,19 83 (412) 566-6000 g5N

O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of  :

DUKE POWER COMPANY, ET AL.  : Docket Nos. 50-413

50-414

-(Catawba Nuclear Station,  :

Units 1 and 2)  :

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OUT OF TIME The Atomic Industrial Forum, Inc. (" Amicus") hereby moves the Nuclear Regulatory Commission (" Commission") pursuant to 10 C.F.R. Section 2.715 (d) for leave to file a brief as amicus curiae in connection with the consideration by the Commission of a motion of the applicant Duke Power Company

(" Applicant") to stay orders of the Atomic Safety and Licens-ing Board (" Licensing Board") and Atomic Safety and Licensing Appeal Board (" Appeal Board") dated, respectively, November 10 and November 14, 1983 in the above-captioned case.

l The Atomic Industrial Forum, Inc. (" Forum") is 1

an association of over 500 domestic and overseas organi-f zations interested in the development of peaceful uses of nuclear energy. Its members include electric utilities,

manufacturers, architect-engineers, consulting firms, mining and milling companies, and others who design, build, operate and service facilities for the production of nuclear fuel and the generation of nuclear power. Applicant is a member of the Forum.*

On November 15, 1983 Applicant requested a stay of the orders of the Licensing Board and Appeal Board authorizing intervenor Palmetto Alliance ("Intervenor") to contact Ap-plicant's employee-witnesses during the course of the hearing on the application for operating licenses for the Catawba nuclear units. Amicus desires to address the questions set forth in the Commission's Order dated November 17, 1983 deferring action on Applicant's request until the Commission has considered responses to Applicant's motion. The issues raised by Applicant's motion and the Commission's Order of November 17, 1983 in the above-captioned case are of sig-nificance to the bar and relate to the entire fabric of l

Commission licensing proceedings. They involve fundamental

• The Lawyers Committee of the Forum previously has filed l

' a Brief Amicus Curiae to the Commission in this proceeding in connection with Commission review of a prior Appeal Board decision involving certain matters relating to the stan-dard to be applied in determining whether to admit non-timely filed contentions. See CLI 83-19, 17 NRC 1041 (June 30, 1983).

f questions concerning the attorney-client privilege and the integrity of the Commissioner's Rules of Practice. Amicus is concerned that failure to resolve this matter properly will seriously compromise the ability of the bar in repre-sentation of clients before the Commission and its boards, will violate the due process rights of Applicant, and will do substantial, and perhaps irreparable damage to Commission procedures under the Rules of Practice. Amicus desires to address these issues and to respond to the four questions raised in the Commission Order. With respect to the four questions of the Commission, Amicus desires to take the following positions:

1. Is there an attorney-client relationship be-tween Applicant's attorneys and its witnesses, and if so, why? The brief of amicus curiae will take the position that the attorney-client privilege protects the confidentiality of the communications between the employee-witnesses of Applicant and counsel for the Applicant.

2. Are Applicant's witnesses "a party" in the context of ABA Disciplinary Rule 7-104? The brief of amicus curiae will take the position that the Applicant's witnesses are both agents of a party and employees acting with authority to commit the Applicant so that they should be considered " parties" within the context of ABA Disciplinary Rule 7-10 4.

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

brief of amicus curiae will take the position that the Ap-plicant is both a client possessing a right to the protection of the attorney-client privilege and an adverse party within the meaning of ABA Disciplinary Rule 7-104 and that in both positions it has a right to prevent Intervenor from inter-viewing its employee-witnesses who are acting within the scope of their employment.

4. Are there any circumstances under which Ap- .

plicant's witnesses, who are also its employees, simulta-neously 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 Boards' orders? The brief of amicus curiae will take the position that Applicant's employees, in so far as they are authorized and acting as agents of Applicant, cannot simultaneously be In'ervenor's witnesses, except as they may be called as adverse witnesses as on cross-examination.

In the circumstances of this case, Applicant must be permitted to exercise its right to in-struct its agents not to communicate with Intervenor or counsel for Intervenor except on the record of the hearing.

Amicus believes that the position it will take with respect to the above issues will be supportive of the

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position of Applicant in this proceeding. Amicus is aware of the provisions of 10 C.F.R. Section 2. 715 (d) whereby such brief is to be filed within the time allowed to the party whose position the brief will support, except as other-Amicus hereby requests wise provided by the Commission.

permission to file its brief out of time on December 1, 1983. The order of the Commission in this proceeding was issued on November 18, 1983. The Chairman of the Lawyers Committee first became aware of the order and of the existence of the present controversy when the order was received in the mail on Wednesday afternoon, November 22, 1983, one day bafore There-responses were due to be filed with the Commission.

after, time was required to review the decision, conduct appropriate consultations and obtain requisite authorization before this motion could be filed. Such process was not completed until today, DecemLur 1,19 83, and it was impos-sible for Amicus to prepare its brief by the filing date of Applicant on November 23, 1983. Amicus believes that the issues before the Commission should receive expeditious con-sideration and prompt resolution in order to facilitate the ongoing hearing process and to prevent further harm to the Applicant. However, no prejudice should result to any party from granting Amicus permission to file its brief at the time requested if the Commission has not yet made its decision.

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, 3 Amicus is concerned with the implications of the orders of the Licensing Board and the Appeal Board as they might impact on the attorney-client relationship between an applicant and its counsel and as they might affect the entire structure and workability of the Rules of Practice of the Commission in licensing proceedings. A corporation can act only through its ' agents and to interfere with the relationship between the agents for the corporation and counsel for the corporation is to deprive the corporation of the protection of the actorney-client privilege and, consequently, to deprive an applicant of the effective assistance of counsel. If the orders in question are not modified, serious questions will arise concerning the ability of applicants to communicate fully and effectively with their counsel and to be advised in nuclear licensing proceedings. Moreover, if the orders are not modified, serious questions will arise as to the use and usefulness of Commission Rules of Practice relating to discovery. These concerns have prompted Amicus to request permission fo file a brief in support of the position of Applicant in this proceeding.

WHEREFORE, the Atomic Industrial Forum, Inc.

respectfully requests leave to file a brief as amicus curiae in the above-captioned proceeding.

Respectfully submitted,

/s/ Edwin Wiggin Edwin Wiggin Executive Vice President Atomic Industrial Forum, Inc.

Of Counsel:

/s/ Barton Cowan, Z. Cowan Esquire Barton Z.

Chairman, AIF Lawyers Committee Ann McClure, Esquire Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 (412) 566-6000 Date: December 1, 1983

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of  :

DUKE POWER COMPANY, ET AL.  : Docket Nos. 50-413

50-414 (Catawba Nuclear Station,  :

Units 1 and 2)  :

CERTIFICATE OF SERVICE I hereby certify that copies of " Motion for Leave to File Brief Amicus Curiae Out of Time" in the above-captioned matter have been served upon the following by deposit in the United States mail this 1st day of December,19 83.

• Nunzio J. Palladino Alan S. Rosenthal Chairman Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission

• Frederick M. Bernthal Washington, D.C. 20555 Commissioner U.S. Nuclear Regulatory Thomas S. Moore Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory

• James K. Asselstine Commission Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Howard A. Wilber Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board

• Victor Gilinsky U.S. Nuclear Regulatory Commissioner Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 James L. Kelley Chairman

• Thomas M. Roberts Atomic Safety and Licensing Commissioner Board Panel '

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 i

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O Jesse L. Riley Dr. Paul W. Purdom 854 Henley Place 235 Columbia Drive Charlotte, North Carolina 28207 Decatur, Georgia 30030 Carole F. Kagan, Attorney Dr. Richard F. Foster Atomic Safety and Licensing P. O. Box 4263 Board Panel Sunriver, Oregon 97702 U.S. Nuclear Regulatory Chairman Commission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel Karen E. Long U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555 N.C. Department of Justice P. O. Box 629 Chairman Raleigh, North Carolina 27602 Atomic Safety and Licensing

• Scott Stucky Appeal Board Docketing and Service Section U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commission Washington, D.C. 20555 George E. Johnson, Esq.

Office of the Executive Legal Don R. Willard Mecklenburg County Director Department of Environmental I U.S. Nuclear Regulatory Health Commission 1200 Blythe Boulevard Washington, D.C. 20555 28203 Charlotte, North Caroline Albert V. Carr, Jr., Esq.

• Martin G. Malsch, Esq.

Duke Power Company Deputy General Counsel and P. O. Box 33189 Acting General Counsel i

Charlotte, North Carolina 28242 U.S. Nuclear Regulatory Il Richard P. Wilson, Esq. Commission Washington, D.C. 20555 i Assistant Attorney General State of South Carolina J. Michael McGarry, Esq.

P. O. Box 11549 Debevoise & Liberman Columbia, South Carolina 29211 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 Robert Guild, Esq.

Attorney-at-Law P. O. Box 12097 29412 Charleston, South Carolina Palntetto Alliance 2135-1/2 Devine Street 29205 /s/ Barton Z. Cowan i Columbia, South Carolina Barton Z. Cowan, Esq. l Chairman, AIF Lawyers Committee l

• Designates those hand delivered )

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