|
---|
Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212D1771999-09-20020 September 1999 Exemption from Certain Requirements of 10CFR50,App A,General Design Criterion 57 Re Isolation of Main Steam Branch Lines Penetrating Containment ML20211A1801999-08-16016 August 1999 Forwards Comments on Draft Geig Re NUREG-1437 ML20205M8401999-04-15015 April 1999 Memorandum & Order.* Orders That Petitioner Appeal of Board Ruling Be Denied.Commission Affirms LBP-98-33 in Entirety. with Certificate of Svc.Served on 990415 ML20199K8231999-01-25025 January 1999 NRC Brief in Opposition to Appeal of Nb Williams,Wb Clay, Ws Lesan & Chattooga River Watershed Coalition.* Licensing Board Decision in LBP-98-33 Should Be Affirmed.With Certificate of Svc ML20199K8101999-01-25025 January 1999 Duke Energy Corp Brief in Opposition to Appeal of Chattooga River Watershed Coalition.* Informs That Licensing Board Decision in LBP-98-33 Should Be Affirmed.With Certificate of Svc ML20199D7021999-01-14014 January 1999 Notice of Appeal.* Chattooga River Watershed Coalition Files Notice of Appeal to Commission for Review of ASLB 981230 Memorandum & Order Denying Petitioner Petition for Leave to Intervene ML20199D7241999-01-14014 January 1999 Chattooga River Watershed Coalition Brief in Support of Appeal of Order Denying Intervention Petition & Dismissing Proceeding.* Commission Should Grant Petition for Review & Remand ASLB Memorandum & Order ML20198K9911998-12-29029 December 1998 Memorandum & Order (Denying Petition to Intervene).* Denies Petitioners Requests for Intervention Because Proffered Contentions Failed to Meet Requirements for Admissability. with Certificate of Svc.Served on 981230 ML20198D2601998-12-22022 December 1998 NRC Staff Response to Petitioners New Info.* Informs That Info Provided by Petitioners Not New & Does Not Support Proposed Contentions.Recommends Proposed Contentions Be Dismissed & Proceeding Terminated.With Certificate of Svc ML20198D2191998-12-21021 December 1998 Duke Energy Corp Response to New Info Submitted by Chattooga River Watershed Coalition in Support of Processed Contentions.* Petitioner Submittal of New Info Should Be Stricken for Procedural Reasons.With Certificate of Svc ML20197J9201998-12-14014 December 1998 Order (Requests by Staff & Applicant to File Responses). Motions of 981211 Re Applicant & Staff Request for Leave to Respond to Petitioner Filing of 981209 Granted.With Certificate of Svc.Served on 981214 ML20197J9441998-12-11011 December 1998 NRC Staff Motion for Leave to Respond to Petitioner Filing.* Staff Requests Leave from Board to Respond to Info.Staff Will File Response within 3 Days After Board Order Issued,If Board Grants Request.With Certificate of Svc ML20197K1131998-12-11011 December 1998 Duke Energy Corp Motion for Leave to Respond to New Info Submitted by Chattooga River Watershed Coalition.* Requests Leave to Respond to Petitioners New Info Based on Listed Grounds.With Certificate of Svc ML20196J9051998-12-0909 December 1998 Response of Duke Energy Corp to Licensing Board Order Requesting Info Concerning high-level Radioactive Waste Transportation Rulemaking.* Util Requests That Board Certify Question Immediately.With Certificate of Svc ML20197J8691998-12-0909 December 1998 Petitioners Response to ASLB Request for Addl Info & New Info for ASLB to Consider with Petitioners First Suppl Filing.* Response Filed on Behalf of Ws Lesan,B Clay, B Williams & Chattooga River Watershed Coalition ML20196E0091998-12-0202 December 1998 NRC Staff Response to Order Requesting Information.* in Staff View,Impacts of Transportation of HLW Not Appropriate Issue for Litigation in This Proceeding ML20196E0191998-11-30030 November 1998 Affidavit.* Affidavit of Dp Cleary in Response to Licensing Board Questions Re Environ Impacts of Transportation of High Level Waste.With Certificate of Svc ML20195G5621998-11-19019 November 1998 Order (Requesting Addl Info from Staff).* Based on Directives in SRM M970612,staff Should Furnish Listed Info by 981202.Applicant & Petitioners Have Until 981209 to File Response.With Certificate of Svc.Served on 981119 ML20195D5281998-11-16016 November 1998 Response of Duke Energy Corp to Supplemental Petition to Intervene Filed by Chattooga River Watershed Coalition & Nb Williams,Wb Clay & Ws Lesan.* Request for Hearing Should Be Denied for Reasons Stated.With Certificate of Svc ML20195C1601998-11-16016 November 1998 NRC Staff Response to Petitioner First Supplemental Filing.* Petitioners Failed to Submit Admissible Contention.Iaw 10CFR2.714,petition Should Be Denied & Petitioners Request for Stay Should Be Denied.With Certificate of Svc ML20155F5041998-10-30030 October 1998 Declaration of N Williams.* Declaration Expresses Concerns Re Duke Power Co Application for License Renewal for Oconee Nuclear Station,Units 1,2 & 3.Application Inadequate to Protect from Unacceptable Risk of Radiological Accidents ML20155F4951998-10-30030 October 1998 Declaration of Ws Lesan.* Declaration Expresses Concern Re Duke Power Co Application for Renewal of License for Oconee Nuclear Station,Units 1,2 & 3.Application Inadequate to Protect from Unacceptable Risk of Radiological Accidents ML20155F4791998-10-30030 October 1998 Petitioners First Supplemental Filing.* Petitioners Request That Chattooga River Watershed Coalition Be Admitted as Party to These Proceedings & That Contentions Be Admitted for Adjudication.Unsigned Declaration for Wb Clay Encl ML20154H0771998-10-0909 October 1998 NRC Staff Answer to Petition for Leave to Intervene Filed by N Williams,W Clay,Ws Lesan & Chattooga River Watershed Coalition.Petition Should Be Denied for Listed Reasons. with Certificate of Svc ML20154A9371998-10-0101 October 1998 Order (Ruling on Request for Extension of Time).* Motion for 30-day Extension to File Amended Petition to Intervene Denied.Petitioners Have Addl 11 Days Until 981030 to File Suppl to Petition.With Certificate of Svc.Served on 981002 ML20154A0401998-09-30030 September 1998 Response of Duke Energy Corp to Request for Enlargement of Time of Chattooga River Watershed Coalition & Messrs, N Williams,W Clay & Ws Lesan.* Petitioner Request Should Be Denied for Listed Reasons.With Certificate of Svc ML20153H4191998-09-29029 September 1998 NRC Staff Response to Motion for Enlargement of Time Filed by N Williams,W Clay,W Lesan & Chattooga River Watershed Coalition.* Petitioners Failed to Establish Sufficient Cause for Delaying Submission of Amends.With Certificate of Svc ML20153F3131998-09-25025 September 1998 Notice of Appearance.* Informs That ML Zobler,Rm Weisman & Je Moore Will Enter Appearances in Proceeding Re Duke Energy Corp.With Certificate of Svc ML20153H0801998-09-22022 September 1998 Comment on Draft NUREG-1633, Assessment of Use of Potassium (Ki) as Protective Action During Severe Reactor Accidents. Emergency Plan Calls for Evacuation of Population of EPZ in Timely Fashion to Prevent Exposure to Radiation from Oconee ML20151Z7051998-09-18018 September 1998 Memorandum & Order.* Applicant & Staff Shall File Respective Answers After Petitioners File Any Amend to Intervention Petition.Answers Shall Be Filed IAW Schedule as Submitted. with Certificate of Svc.Served on 980918 ML20151Z5681998-09-18018 September 1998 Notice of Reconstitution of Board.* Provides Notification of Reconstitution by Appointing P Cotter as Board Chairman in Place of T Moore in Duke Energy Corp Proceeding.With Certificate of Svc.Served on 980918 ML20151X9911998-09-16016 September 1998 Establishment of Atomic Safety & Licensing Board.* Board Being Established in Proceeding Re Application by DPC to Renew Operating Licenses for Units 1,2 & 3,per 10CFR54.With Certificate of Svc.Served on 980917 ML20210K7351997-08-18018 August 1997 Order Prohibiting Involvement in NRC-licensed Activities (Effective Immediately).Rj Nelson Prohibited for 1 Yr from Date of Order from Engaging in or Exercising Control Over Individuals Engaged in NRC-licensed Activities TXX-9522, Comment Opposing Proposed GL on Testing of safety-related Logic Circuits.Believes That Complete Technical Review of All Surveillance Procedures Would Be Expensive & Unnecessary Expenditure of Licensee Resources1995-08-26026 August 1995 Comment Opposing Proposed GL on Testing of safety-related Logic Circuits.Believes That Complete Technical Review of All Surveillance Procedures Would Be Expensive & Unnecessary Expenditure of Licensee Resources ML20077E8231994-12-0808 December 1994 Comment Supporting Proposed Rules 10CFR2,51 & 54 Re Rev to NRC NPP License Renewal Rule ML20044G7371993-05-25025 May 1993 Comment on Proposed Rules 10CFR170 & 171, FY91 & 92 Proposed Rule Implementing Us Court of Appeals Decision & Rev of Fee Schedules;100% Fee Recovery,FY93. Opposes Rule ML20101R5931992-07-0606 July 1992 Comment on Proposed Rule 10CFR50 Re Loss of All Alternating Current Power & Draft Reg Guide 1.9,task DG-1021.Opposes Rule ML20070E6291991-02-28028 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Regulations to Upgrade Design Basis Threat for Radiological Sabotage of Nuclear Reactors ML20147F3231988-03-0303 March 1988 Order Imposing Civil Monetary Penalty in Amount of $100,000 within 30 Days of Order Date ML20215D6741987-06-12012 June 1987 Suppl 4 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.Ucs Reply to Responses from NRC & B&W Owners Group.* Certificate of Svc Encl ML20214F4411987-04-24024 April 1987 Endorsements 35 & 36 to Maelu Policy MF-101 & Endorsements 43 & 44 Nelia Policy NF-248 ML20210C4191987-04-0606 April 1987 Principal Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Petition Should Be Denied ML20205F2911987-03-23023 March 1987 Suppl 3 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Requests That Listed Names Be Added to List in Paragraph 1 of 870210 Petition ML20210C2691987-03-0606 March 1987 Initial Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Request for Immediate Suspension Should Be Summarily Denied.W/Certificate of Svc ML20211F5091987-02-20020 February 1987 Suppl 2 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Lists Names to Be Added to 870210 Petition & Corrects Address for Save Our State from Radwaste ML20210N4861987-02-10010 February 1987 Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W Co.* OLs & CPs for Facilities Should Be Suspended Until Listed NRC Actions Taken ML20203N3261986-09-19019 September 1986 Order Imposing Civil Monetary Penalty in Amount of $50,000 DD-85-19, Order Extending Time Until 860303 for Commission to Review Director'S Decision DD-85-19.Served on 8602201986-02-19019 February 1986 Order Extending Time Until 860303 for Commission to Review Director'S Decision DD-85-19.Served on 860220 ML20137L5911985-09-10010 September 1985 Response Opposing Jf Doherty 850611 Petition for Show Cause Order Requesting NRC to Institute Consolidated Proceeding Per 10CFR2.202.Certificate of Svc Encl ML20133P9591985-07-26026 July 1985 Unexecuted Amend 8 to Indemnity Agreement B-83,modifying Definition of Radioactive Matl as Listed 1999-09-20
[Table view] Category:PLEADINGS
MONTHYEARML20199D7021999-01-14014 January 1999 Notice of Appeal.* Chattooga River Watershed Coalition Files Notice of Appeal to Commission for Review of ASLB 981230 Memorandum & Order Denying Petitioner Petition for Leave to Intervene ML20198D2601998-12-22022 December 1998 NRC Staff Response to Petitioners New Info.* Informs That Info Provided by Petitioners Not New & Does Not Support Proposed Contentions.Recommends Proposed Contentions Be Dismissed & Proceeding Terminated.With Certificate of Svc ML20198D2191998-12-21021 December 1998 Duke Energy Corp Response to New Info Submitted by Chattooga River Watershed Coalition in Support of Processed Contentions.* Petitioner Submittal of New Info Should Be Stricken for Procedural Reasons.With Certificate of Svc ML20197J9441998-12-11011 December 1998 NRC Staff Motion for Leave to Respond to Petitioner Filing.* Staff Requests Leave from Board to Respond to Info.Staff Will File Response within 3 Days After Board Order Issued,If Board Grants Request.With Certificate of Svc ML20197K1131998-12-11011 December 1998 Duke Energy Corp Motion for Leave to Respond to New Info Submitted by Chattooga River Watershed Coalition.* Requests Leave to Respond to Petitioners New Info Based on Listed Grounds.With Certificate of Svc ML20196J9051998-12-0909 December 1998 Response of Duke Energy Corp to Licensing Board Order Requesting Info Concerning high-level Radioactive Waste Transportation Rulemaking.* Util Requests That Board Certify Question Immediately.With Certificate of Svc ML20197J8691998-12-0909 December 1998 Petitioners Response to ASLB Request for Addl Info & New Info for ASLB to Consider with Petitioners First Suppl Filing.* Response Filed on Behalf of Ws Lesan,B Clay, B Williams & Chattooga River Watershed Coalition ML20196E0091998-12-0202 December 1998 NRC Staff Response to Order Requesting Information.* in Staff View,Impacts of Transportation of HLW Not Appropriate Issue for Litigation in This Proceeding ML20195D5281998-11-16016 November 1998 Response of Duke Energy Corp to Supplemental Petition to Intervene Filed by Chattooga River Watershed Coalition & Nb Williams,Wb Clay & Ws Lesan.* Request for Hearing Should Be Denied for Reasons Stated.With Certificate of Svc ML20195C1601998-11-16016 November 1998 NRC Staff Response to Petitioner First Supplemental Filing.* Petitioners Failed to Submit Admissible Contention.Iaw 10CFR2.714,petition Should Be Denied & Petitioners Request for Stay Should Be Denied.With Certificate of Svc ML20155F4791998-10-30030 October 1998 Petitioners First Supplemental Filing.* Petitioners Request That Chattooga River Watershed Coalition Be Admitted as Party to These Proceedings & That Contentions Be Admitted for Adjudication.Unsigned Declaration for Wb Clay Encl ML20154A0401998-09-30030 September 1998 Response of Duke Energy Corp to Request for Enlargement of Time of Chattooga River Watershed Coalition & Messrs, N Williams,W Clay & Ws Lesan.* Petitioner Request Should Be Denied for Listed Reasons.With Certificate of Svc ML20153H4191998-09-29029 September 1998 NRC Staff Response to Motion for Enlargement of Time Filed by N Williams,W Clay,W Lesan & Chattooga River Watershed Coalition.* Petitioners Failed to Establish Sufficient Cause for Delaying Submission of Amends.With Certificate of Svc ML20215D6741987-06-12012 June 1987 Suppl 4 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.Ucs Reply to Responses from NRC & B&W Owners Group.* Certificate of Svc Encl ML20210C4191987-04-0606 April 1987 Principal Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Petition Should Be Denied ML20205F2911987-03-23023 March 1987 Suppl 3 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Requests That Listed Names Be Added to List in Paragraph 1 of 870210 Petition ML20210C2691987-03-0606 March 1987 Initial Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Request for Immediate Suspension Should Be Summarily Denied.W/Certificate of Svc ML20211F5091987-02-20020 February 1987 Suppl 2 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Lists Names to Be Added to 870210 Petition & Corrects Address for Save Our State from Radwaste ML20210N4861987-02-10010 February 1987 Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W Co.* OLs & CPs for Facilities Should Be Suspended Until Listed NRC Actions Taken ML20137L5911985-09-10010 September 1985 Response Opposing Jf Doherty 850611 Petition for Show Cause Order Requesting NRC to Institute Consolidated Proceeding Per 10CFR2.202.Certificate of Svc Encl ML20126A3531985-06-11011 June 1985 Petition/Request for Order to Show Cause Why Plants Should Not Be Shut Down Until CRD Mechanisms Inspected ML20004F4851981-06-16016 June 1981 Answer Opposing Carolina Environ Study Group 810606 Request to Stay ASLB 810419 & 0526 Decisions.Util Compliance W/Regulations Entitles ASLB to Find Facility Can Be Operated W/O Undue Risk to Public Health.Certificate of Svc Encl ML20004F0131981-06-0808 June 1981 Exceptions to ASLB 810526 Supplemental Initial Decision & 790418 Initial Decision.Aslb Erred in Rejecting Jl Riley Evidence as Expert Witness & Decision That Riley Affidavit Not Responsive.Affidavit of Suc Encl ML20004D4161981-06-0505 June 1981 Request for Stay of Initial & Supplemental Initial Decisions.Commission Should Refer Decisions to ASLAP for Review.Potential for Irreparable Harm Due to Serve Hydrogen Explosion Is Great.Affirmation of Svc Encl ML20004D4231981-06-0505 June 1981 Request for Stay of Initial & Supplemental Initial Decisions.Aslb Lacks Basis for Finding Operation Would Not Expose Public to Undue Risk Since Board Did Not Determine Consequences of Shell Rupture.Affirmation of Svc Encl ML20004C8571981-06-0101 June 1981 Response in Opposition to Carolina Environ Study Group 810515 Motion to Permit Appeal of ASLB 810506 Order Denying Util Request for 35% Power Operations.Party May Not Appeal Favorable Decision.Certificate of Svc Encl ML19343D3451981-04-17017 April 1981 Response Opposing Applicant Request for Waiver,Exception or Exemption from 10CFR2,App B.No Special Circumstances Exist to Waive Procedures ML19345G9021981-04-17017 April 1981 Response in Opposition to Carolina Environ Study Group 810402 Motion Questioning Util 810324 Request for OL for 35% Power level.TMI-type Accident Is Not Credible.Proposed Order & Certificate of Svc Encl ML19347D9171981-04-0909 April 1981 Response in Opposition to Carolina Environ Study Group 810406 Request for Extension to File Findings of Fact & Conclusions of Law.Applicant Transcripts Available to Intervenors.Certificate of Svc Encl ML19350D2471981-04-0606 April 1981 Request for 10-day Extension to File Proposed Findings of Fact & Conclusions of Law.Counsel Occupied W/Other Cases. Certificate of Svc Encl ML19343D1461981-04-0606 April 1981 Response Opposing Carolina Environ Study Group 810302 Request for Certification or Referral.Request Unnecessary Since Commission Has Specifically Addressed Issue. Certificate of Svc Encl ML19347D9761981-04-0303 April 1981 Response Opposing Applicant 810327 Submittal of Jl Riley Affidavit & Affirmation of Svc.Filing Is Contrary to ASLB Ruling.Record Is Closed & Filing Is Not Responsive ML19347D9791981-04-0303 April 1981 Response to Jl Riley 810327 Affidavit Re Polyurethane Pyrolysis in Form of Encl Wh Rasin Affidavit ML19350D2501981-04-0202 April 1981 Reply Opposing Applicant 810324 Motion for License Authorizing Up to 35% Rated Power Operation.Alleged Need to Bolster Util Summer Reserve Is Result of Scheduling Oconee 1 Maint During Summer Peak.W/Certificate of Svc ML19347D7811981-03-24024 March 1981 Request for License Authorizing Operation Up to & Including 35% Rated Power.Fuel Loading,Initial Criticality & Zero Power Physics Testing to Be Completed by 810515.Certificate of Svc Encl ML19341D4501981-03-0202 March 1981 Response in Objection to ASLB 810217 Memorandum & Order Denying Admission of Contentions 5 & 6.Supplementary EIS on Class 9 Accident Is Necessary Predicate in Proceeding.Denial Should Be Certified to Commission.W/Certificate of Svc ML19350B7511981-02-26026 February 1981 Carolina Environ Study Group Application for Subpoenas Re Reopened McGuire Units 1 & 2 OL Proceeding.List of Proposed Witnesses & Questions Encl.Related Correspondence ML20003B3151981-02-0404 February 1981 Request for Reconsideration of Schedule.Carolina Environ Study Group Should Be Allowed to Submit Prefiled Testimony Seven Days After Receipt of NRC Complete Prefiled Testimony. Certificate of Svc Encl.Related Correspondence ML19345E8431981-02-0202 February 1981 Response Opposing Carolina Environ Study Group Motion & Memorandum to Add Contentions.Question of Need to Suppl EIS Resolved.No Special Circumstances Exist to Include Charlotte,Nc in Emergency Plans ML20002E0871981-01-21021 January 1981 Memorandum Supporting Carolina Environ Study Group Motion to Add Contentions 5 & 6 Advanced in 801107 Reply to Applicant Motion for Summary Disposition.Notice of Appearance & Certificate of Svc Encl ML20002E0531981-01-19019 January 1981 Response to Mecklenburg County Board of Commissioners & City of Charlotte 801231 & 810113 Requests to Participate. Applicant Has No Objection.Certificate of Svc Encl ML19340E5881981-01-0808 January 1981 Motion to Suppl 801107 Contentions 5 & 6 W/Memorandum of Law.No Objection to Extension for Reply.Certificate of Svc Encl ML19340D2821980-12-15015 December 1980 Response to Carolina Environ Study Group Motion to Add Further Contentions.Carolina Environ Study Group Addl Contentions 5 & 6 Found Factually & Legally Flawed & Merit Denial.Certificate of Svc Encl ML19345E0491980-12-0202 December 1980 Response in Opposition to M Fennel 800926 Request to Reopen Hearing If Viewed as Late Petition to Intervene.Certificate of Svc Encl ML19339C3361980-11-12012 November 1980 Supplemental Filing Re Applicant Motion for Summary Disposition of Application for Fuel Loading & Low Power Testing.Calls Attention to Encl 801021 Fr Notice.Urges Expedited Consideration.Certificate of Svc Encl ML19340B7751980-11-0707 November 1980 Suppl to Statement of Matl Facts Re Absence of Issues to Be Heard.Hydrogen Generation Event During Worst Case May Be Terminated Prior to Onset of Core Damage.Notice of Mu Rothschild Appearance & Certificate of Svc Encl ML19340C4801980-11-0707 November 1980 Response in Opposition to Applicant 800930 Motion for Summary Disposition Re Application for License Authorizing Fuel Loading.Moves for Consolidated Hearing Re Provisionary & Full Term Ols.Related Correspondence ML19339B5581980-11-0303 November 1980 Comments on Commission 800926 Order Requesting Positions of Parties on Carolina Environ Study Group Revised Motion to Reopen Record.Affirms Prior View That CLI-80-16 Has No Direct Bearing on Motion.Certificate of Svc Encl ML19347B4111980-10-0909 October 1980 Response in Opposition to P Edmonston 801002 Request to Make Statement,If Viewed as Petition to Intervene.No Objection If Viewed as Request to Make Limited Appearance Statement If Hearing Held.Certificate of Svc Encl ML19347B3641980-10-0808 October 1980 Response in Opposition to s Wilson 800930 Ltr,If Viewed as Late Petition to Intervene.No Objection to s Wilson Public Statement,If Hearing Reopened.Certificate of Svc Encl 1999-01-14
[Table view] |
Text
./.-i1 9 :'
n .
V .
UNITED STATES OF AMERICA DEFORE THE ATOMIC E 'ERGY C0:0!ISSION In the Matter of ) _
DUKE POWER COMPANY $ Dochet Nos. 50-269A, 50-270A (Oconee Units 1, 2 and 3 1 50-287A, 50-369A McGuire Units 1 cnd 2) T 50-370A ANSUER OF THE DEFARTENT OF JUSTICE TO APPLICANT' S MOTION FOR A PROTECTIVE ORDER
- On December 19, 1973, Applicant filed a metica seek-ing a protective order preventing the Department of Justice from making further use of an allegedly privileged document and requiring the return of all copies of the document thus far circulated by the Department. Furthermore, Applicant moved that the question be referred to the Special Master designcted in Prehearing Order Number 8 fer resolution. Fur-suant to Section 2.730(c), the Department files this answer opposing Applicant's motion in all respects.
I. BACKGROUND The document in question, numbered 19137-19138, was received from Applicant in May, 1973, as part of Applicant's response to hhe First Joint Request for Production of Docu-ments which was filed September 5, 1972. On December 17, 1973, six months after the production of the document, Applicant notified the Department that, document No. 19137-19138 had been 12170 g 7
inadvertantly produced and that this document was one of those listed by Applicant as protected by the attorney-client privilege UntLL this point, the Department was not aware, and could nd; reasonably have been expected to be aware, that the document was subject to any claim of privilege. Applicant has requested that the Department return the document. The Department has refused this request in the belief that (1) the document is not privileged, and (2) if it were, the privilege was waived by Applicant's production of the document and its failure to request the return of the document for over six months.
. II. THE ROLE OF THE SPECIAL MASTER We turn first to Applicant's request that the entire matter be referred to the Special Master for determination.
The Department opposes this request. The Special Master was appointed in order to allow a determination of Applicant's claim that several documents were protected by the attorney-client privilege without revealing to the Board the contents of those documents. However, the document in question is already a matter of public record since it was an attachment to the Department's Answers to Applicant's Interrogatories and Document Production Request, filed November 30, 1973, and served on each of the Board members at that time.1/ Accordingly since the primary reason for utilicing the Special Master has 1/. The Department was not aware, at that time, that the Eocument was subject to any claim of privilege.
2 .
-w-- omo.em. >mo a '
~
now been rendered moot, no useful purpose can be served by, referring the question to him.
Moreover, even if the Board members have not in fact read the docu=ent, it is unnecessary to do so to resolve this issue. It is the Department's position that even if the~ docu-ments were once privileged, that privilege has been waived by the production of the documents, its subsequent dissemination and the failure of Applicant to promptly request its return.
A decision as to vaiver is unrelated to the task assigned to the Special Master, and it would be inappropriate to refer ,
this matter to him.
Finally, the Department believes that referring this matter to the Special Master uill only result in unnecessary delay in resolving the legal issue involved. 2/
III. THE APPLIC/.BLE CASE LAW A. Recent Rulines in the IBM Cases In support of its motion, Applicant relies on recent decisions in the antityust actions brought by the Department of Justice and Control Data Corporation against the International Business Machines Corporation.1/ The Department 2/ The Department will not repeat here its agruments made Eefore the Special Master that the document is not privileged since that determination is not relevant to the issue of waiver presented here.
3/ Internationa1 Business Machines Corp. v. United States, 471 F.2d, 507 (2d cir., 1973), rev'd en banc 480 F.2d 293 (2d cir.,
19731 petition for cert. filed, 47 U. S. L.W. 3031 and 3033 (June 11,1973T ; also United States v. IBM Corp.,1973-2 Trade Cases 174,632; also Control Data Corp. v. International Business Machines Corp. ,16 Fed. Rules Serv. 2d 1233 (D. Minn. , 1972).
3 i j
.m agrees with the Applicant that the Board should follow the recent rulings in the IBM cases in resolving this question.
However, the Departa ent and Applicant do not agree as to the meaning of these cases.
~
In the IBM cases, IBM inadvertantly produced to the Control Data Corporation, in a private antitrust action, documents which'it later alleged were protected by the attorney-client privilege. IBM refused to produce these same documents to the Department of Justice in a separate action. The Department thereupon moved to compel the production of these documents. Chief Judge Edelstein ordered production. 4/ '
IBM took an appeal from this order to the United States Court of Appeals for the Second Circuit. A divided three-judge panel vacated the order. 5/ On application by the Department, the court reheard the appeal en,be.nc and reversed the panel's decision on grounds that under the Expediting Act the only .
4/ United States v. International Business Machines Corp.,
Civil Actica No. 69 Civ. 200 (S.D.N.Y.). Pretrial Order No. 5 issued September 26, 1972. Judge Edelstein did not write an opinion to acccmpany the order, nor make any findings of fact.
5/ International Eusiness Mzchines Corp. v. United States, E71 F.2 50 7 (2d' Cir. , 1972) , rev'd en banc 480 F.2d 293 (2d Cir., 1973). The majority of the tEFee-judge panel assumed that the production of the privileged docu=ents by IBM to Control Data were protected frem inadvertant waiver by an order of the U. S. District Court in Minnesota.
l l
4 F
= .o ,- % .-
appeal was in the Supreme Court. 6/ Accordingly, the panel's
~
earlier decision was voided. Nevertheless, Applic ant relies on the earlier decision, now void, to support its position that production of a document does not constitute waiver of the privilege. The Supreme Court refused to stay the effec-tiveness of the Edelstein order pending interlocutory appeals to it by IBM. Since IBM has refused to produce the documents, Judge Edelstein found IEM in civil contempt.
Applicant also relies on a precial order of Judge Neville in the Control Data case to support its position. 7/
There Judge Neville ruled that since reasonable precautions were taken to prevent disclosure of privileged material, there was no waiver. Judge Edelstein was aware of this ruling, but declined to follow it. Moreover, the magnitude of discovery conducted in the CDC case does not compare to that conducted in this proceeding. IBM itself copied or microfilmed some 80 million CDC documents and CDC sent a staff of some 61 persons to IBM offices to inspect and copy documents.
6/ In a 4-2 decision the cour.t ruled that the. Expediting Act, TS U.S.C. 529 required that appellate review of the order be had, if at all, in the Supreme Court. However, the court did state the following at p. 299: " Suffice it is to say that !
tha record does not establish clearly that all of the documents l for which privilege is now claimed were surrendered in reliance
{
on Judge Neville's ruling. Furthermore, we were not persuaded -
that the Government, which agreed to receive the edited listing, therefore agreed to forego the position that the initial sur-render to CDC constituted a waiver." l 7/ See Control Data v. International Business Machines Corp. ,
T6 Fed. Rules Serv. 2d 1233 (D. Minn. , 1972).
5 l
From this morass of legal decisions, one thing is clear: The :delstein crder remains in effect and that order calls for the productica of privileged dccuments uhich were inadvertantly produced to a person not a party to the action.
Moreover, even if IBM shculd achieve a favorable decision on appe.al, Applicant's motion should still be denied. The IEM fact situation is unlike the one here in several significant ways: Document No. 19137-19138 uas produced to a party to the action, not to a third party, and the discovery process here was not protected by any order directed to the inadvertant waiver problem as may have been the case in IBM. The significance of the production of the docu=ent to a party rather than a third person is that the confidentiality of this communication is irreparably breached. There is no feasible way to erase .
the information in this document from the minds of the attorneys who have read it. It is inevitable that the fruits of this knowledge will flavor the subsequent proceedings in this action to a certain but undefinable extent. Furthermore, the docu-i ment has been made a part of a widely disseminated public filing which included all Board members. Thus if the Board members have read or considered the document, its content and thrust s
cannot be erased from their memory either.
B. Other Lower Court Decisions Aside from the IBM cases, the issue of inadvertant waiver has been the subject of only limited lower court scrutiny, presumably because once the documents are disseminated there
?
6
., . _ . . . - . . . . . .]
is little that can be done to restore the confidentiality of the communication which is the essence of the privilege. See McCormick on Evidence, p. 187. The case,of United States v.
Kelsev-H;ves Wheel Co., 15 F.R. D. 461 (E. D. Mich. ,1954) closely resembles the current fact situation. There the Department came into possession of about a thousand documents of the Budd Company as the result of a review of voluminous company files in connection with an antitrust inv es tiga tion.
The claim uns, as to some 29 of the documents selected and copied by the Department, that the documents were privileged ,
and the possession by the Department of the documents uns the result of inadvertance. Judge Levin rejected this claim stating at pp. 464-465:
Thus, even if the privilege once attcched to these tuenty-nine documents, it uas lifted then Budd voluntarily made them available to the -
Government. Plaintiff neu knows the contents of the documents and has photostatic copies of them.
As a result of the claimant's own acts, the conte::t in which the rule is intended to serve, the protec-tion of confidential ecmmunications is no lenger present. Since the privilege exists in derega-tion of the overriding interest in full disclosure of all co=petent evidence, where the policy under-lying the rule can no longer be served, it would amount to no mt.e than mechanical obedience to a formula to continue to. recognize it . . . .
i Nor is the result affected by Budd's assertion that the privileged documents were inadvertantly handed over to the Government's representatives; that the mass of documents in its files were so voluminous that it did not know, nor did it have time to discover, that privileged ones were among them.
Applicant made this document available to the Department more than six months ago. The Department noted the
~-
contents of the document and has already used this document
, in this case. Thus, this once confidential ec==unication, having been widely disseminated, is no longer confidential.
Therefore, the Department agrees with Judge Levin that to prevent full disclosure of this document,where the underlying policy of the privilege can no longer be served would be "no more than mechanical obedience to a formula."
Applicant also relies on the holding of the court in Connecticut Mutual Life Insuranca Co. v. Shields,18 F.R.D. 448 (S.D.H.Y., 1955) to support its cl'im a that inad-vertant production of a privileged document, without the intent to waive the attorney-client privilege, does not constitute a waiver. The Department believes that this case was incorrectly decided and it is clearly inconsistent uith Judge Edelstein's order and the holding in the Kelsev-Haves Case. ,
1 IV. APPLICANT'S AGENCY RELAT10HSHIP i WITH ITS COUMSEL Applicant's attorneys maintain that they had no authority to waive the privilege and therefore their inad-vertance cannot constitute a waiver; only Applicant can waive the privilege. The Department agrees that only 3
the holder of the privilege or his agents can waive the l privilege.
But this is not relevant to a determination of this issue. What is relevant is that Applicant 's attorneys, l its~ agent, had the explicit authority to produce documents called for in the Joint Docu=ent Request. (Sce Affidavit 8-
l of Toni K. Golden.) If Applicant itself had inadvertantly produced the docu=cnt, the privilege would have been waived regardless of its subj ective intent. Therefore, under established agency principles the production of the docu-ment by Applicant's attorneys also constitute a waiver pf '
the privilege. As Judge Edelstein's order and the Kelsey-Haves cases hold, the subjective intent of the holder of the privilege is not relevant if the document has been produced. Allegations of inadvertance can not prevent a finding of a waiver. For by the act of production, the confidential nature of the document, the preservation of which is the purpose of the privilege, is destrpyed.
CONCLUSION -
More than si;c months ago the Applicant produced Document No. 19137-19138. The document has since been studied by th2 Department und incorporated in a publicly filed pleading in this proceeding. The confidentiality of the document has been irrevocably breached. Applicant has waived any claim of privilege and its motion should be rej ected.
Respectfully submitted,
' ;)#WN h- h Marit M. Levin Attorney Department of Justice me
9 m% *W D $k it a
gh 4 J @ ~\.
, (".!ITED STATF.S OF AMCEICA BEFO?E THE ATO: IC E"ZRGY CO CIISSION In the !!atter of ) _
)
N DUKE POUER COT'PANY ) Dochet Mos. 50-26?A, 50-270A, (Oconea Units 1, 2 and 3 ) 50-287A, 50-369A, McCuire Units 1 and 2) ) 50-370A CERTIFICAm OF SEF.VICE I herchy certifv that cocios of Ans..ar of Justice to Anclicant's ::otion for a Protectiveof_.t.he. Order,.Denartnant dated J a n u a "'/
. .1. ,' _./.,,
' ' ' i n '.'a e .=..." o". a. c a n ti o n.~.. i. .". ..". ' ' a r h. '..". e
. _5 > a_ _' n e. e *. vc .#
on the folle' ine by danosit in the United States nail, first
, class or air nail, this 4th day of January:
Honorable '! alter U. K. Bonnett Chairnan, .atoric Safety and Licensing Doarc Post Office Ec:: l?"
Pinehurst, Merth Carolina 20374 Honorable Jcsech P. Tuhridy Atonic Safety and Licensino Board 4100 Cathedral 1. venue. M. H.
Washington, D. C. 20016.
Honorable John B. Farnakides Atenic Safety and Licensing Board U.S. Atomic Encrcy Con.'ission Nashington, D. C.. 20545 Carl Horn, Escuire i President, Duke Power Comnany 422 South Church Street Charlotte, " orth Carolina 28201 h'illiam H. Grigg, Esquiro Vice Presidentiand General Counsel Duke Power Conc?nu 422 South Church Street Charlotte, north Carolina 2G201 N. L.. Porter, Tscuire Duho Power Cer9any 422 South Church Street Charlotte, North Carolina 28201 '
O
~
+
Willian Warfield noss, rcquire oa m Georce A. Averv, Escuiro "B~
D Keith "atcon, Scquire oo o - - - "'
Toni K. Colden, "scuiro Wald, !!arkrader & Ross 1320 Nincteenth Street, :!.M.
Washing ton, D. C. 20036 J. O. Tally, Jr., Escuire -
, Tally & Tally Post Office Dra"er 1660 Fayetteville, !! orth Carolina 20302 Troy D. Conner, Esquire Connor & Knotts 1747 Pennsylvania Avenue, ?!.t!.
Washington, D. C. 20026 Joceph Rutberg, Eccuiro Benjamin E. "ocler, Escuire Robert J. "erdisco, 9 squire Antitrust Counsel for AFC Reculatory Staff U.S. Atomic Enercy Ccmrission Washington, D. C. 20545 Mr. Abraham Braitran Chief, Office of Antitruct and Indemnity U.S. Atomic Eneroy Cormicsion Washington, D. C. 20545 David Stover, Esquire
Suite 307 1300 Connecticut Avenue, N.N.
Washington, D. C. 20036 Atomic Safety and Licensing 3 card Panel U.S. Atomic Energy Comnission Washington, D. C. 20545 Mr. Frank M. Maras Chief, Public Proceedings Branch Office of the yeeretarv of the Connission U.S. Atomic Enerev Conmission Washington, D. C. 20545 Chairman, Atomic Safetv and Licensing Appeals Board U.S. Atomic Energy Commission Washington, D. C. 20545
/fG*
MARK !!. LEVIN Attorney, Departnent of Justice
_-- -