ML052560454
| ML052560454 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 09/12/2005 |
| From: | Fernandez A NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Fernandez A 415-1787 | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 10446 | |
| Download: ML052560454 (12) | |
Text
September 12, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR )
OPERATIONS, INC. ) ASLBP No. 04-832-02-OLA
)
(Vermont Yankee Nuclear Power Station) )
NRC STAFFS ANSWER TO VERMONT DEPARTMENT OF PUBLIC SERVICES MOTION TO COMPEL INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission (Staff) herein files its Answer to the Motion to Compel Production of Certain NRC Staff Documents (Motion), filed by the State of Vermont Department of Public Service (DPS) on August 31, 2005. For the reasons set forth below, the Staff respectfully submits that DPSs Motion should be denied.
BACKGROUND The instant case arises out of Entergy Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.s (collectively, Entergy or Applicant) application for an amendment to the operating license for the Vermont Yankee Nuclear Power Station (VYNPS), to authorize an extended power uprate.1 Upon receipt of Entergys application, the NRC published in the Federal Register a notice of consideration of issuance of the proposed amendment and 1
See Letter from J.K. Thayer, Entergy, to the NRC Document Control Desk, Vermont Yankee Nuclear Power Station, License No. DPR-28 (Docket No. 50-271), Technical Specification Proposed Change No. 263, Extended Power Uprate, dated September 10, 2003 (Application) (ADAMS Accession No. ML032580089).
opportunity for a hearing.2 In response to this Notice, DPS filed a petition to intervene and request for hearing on August 30, 2004, which the Licensing Board granted on November 22, 2004.3 In accordance with Commission regulations, the Staff promptly established a hearing file; and, during the course of the proceeding, the Staff has, pursuant to 10 C.F.R. § 2.336(d),
periodically updated its initial disclosures in the hearing file. Throughout this process, the Staff has located documents that it believes are privileged and should be protected from public disclosure (e.g., documents containing attorney work product, attorney-client communications, proprietary information, or pre-decisional deliberations), and identified those documents in a privilege log pursuant to 10 C.F.R. § 2.390.
On August 31, 2005, DPS filed a motion, challenging the Staffs claim of the deliberative process privilege with respect to three E-mail communications between members of the Staff, and asking the Board to issue an Order affording DPS access to the deliberative, pre-decisional information contained therein. As explained below, DPSs request contravenes established Commission jurisprudence and threatens to interfere with the Commissions interest in encouraging frank and open discussions among the Staff throughout the decision-making process. These considerations, in conjunction with DPSs failure to articulate any special or compelling need for the documents it desires, require that DPSs Motion be denied.
DISCUSSION I. Legal Framework The deliberative process privilege is uniformly recognized and upheld in NRC adjudicatory proceedings, pursuant to 10 C.F.R. § 2.390(a)(5). Georgia Power Co. (Vogtle 2
See Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.; Notice of Consideration of Issuance of Amendment to Facility Operating License and Opportunity for a Hearing, 69 Fed. Reg. 39,976 (July 1, 2004).
3 See Licensing Board Memorandum and Order (Ruling on Standing, Contentions, and State Reservation of Rights), dated November 22, 2004. (ADAMS Accession No. ML43280053).
Electric Generating Plant, Units 1 and 2), CLI-94-5, 39 NRC 190, 197 (1994) (discussing former 10 C.F.R. § 2.790(a)(5)). As the Commission indicated in Vogtle, the privilege may be invoked in NRC adjudicatory proceedings, and protects intraagency communications reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Id. (quoting NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975)). See also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984). The agency may invoke the privilege to protect documents that are at once both predecisional and deliberative. See Vogtle, 39 NRC at 197. A document is predecisional if it was prepared before the adoption of an agency decision and specifically prepared to assist the decisionmaker in arriving at his or her decision. Id. (emphasis in original; citations omitted). Further, deliberative communications are those which reflect a consultative process. Id. at 198. As the Commission explained in Vogtle:
Protected documents can include analysis, evaluations, recommendations, proposals, or suggestions reflecting the opinions of the writer rather than the final policy of the agency. Deliberative documents relate[] to the process by which policies are formulated.
However, a document need not contain a specific recommendation on agency policy to qualify as deliberative. A document providing opinions or recommendations regarding facts may also be exempt under the privilege.
Id. (internal citations omitted). The purpose of the privilege is to encourage frank discussions within the government regarding the formulation of policy and the making of decisions. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1164 (1982). See also Shoreham, ALAB-773, 19 NRC at 1346-47.
In litigation, the deliberative process privilege is qualified, in that the agencys interest in confidentiality must be balanced against the interest of the litigant in obtaining the information.
Vogtle, CLI-94-5, 39 NRC at 198; Shoreham, ALAB-773, 19 NRC at 1341. Once the agency
has demonstrated that the privilege was properly invoked, the burden shifts to the party seeking disclosure, who must then show an overriding need or special circumstances in order to overcome a valid claim of privilege. Shoreham, ALAB-773, 19 NRC at 1343. Neither the desire to use such documents to impeach a witness, or to find weaknesses in the opposing partys case, id. at 1343-44, nor the ultimate incorporation of deliberative material into a final public document, demonstrates a compelling need for the material. Id. at 1346. In this regard, it has been held that it is the ultimate institutional findings and determinations by [the decisionmaker], not the predecisional opinions of various members of [the Staff], that are centrally important. Id. at 1346.
II. Argument DPS seeks the disclosure of three documented e-mail communications between Staff members during the course of the Staffs review of the Vermont Yankee license amendment application (ML051940095, ML051990237, and ML05060072), which are being withheld from disclosure pursuant to the deliberative process privilege. These documents contain predecisional and deliberative information, and contain discussions reflecting the views and/or opinions of individual Staff members. These e-mails do not reflect final Staff decisions; rather, they are part of the Staffs deliberative process leading to final Staff decisions and, thus, are exempt from disclosure under the Commission precedents discussed above.
In its Motion, DPS advances three main arguments in support of its request for disclosure. First, DPS argues that the Staff incorrectly withheld the documents based on the fact that DPS admitted contentions are unrelated to the subject matter addressed in the requested documents. See Motion at 6-7. Second, DPS alleges that the documents, which the Staff has sought to withhold, are, in fact, discoverable and that the Staffs withholding is part of a wide-spread concerted effort by the Staff to mis-use the deliberative process privilege. Id.
at 7-10. Finally, while claiming to demonstrate its Vogtle-required compelling need for the
information, DPS merely restates its belief that the privilege has been improperly asserted and expresses its desire to benefit from the insights from members of the Staff. Id. at 10-11.
As explained below, (a) the three E-mail communications were properly withheld from disclosure under the deliberative process privilege, and should continue to be withheld as privileged, consistent with NRC jurisprudence; and (b) DPS has failed to satisfy its obligation to demonstrate a compelling need for information that is otherwise protected by the privilege.
Accordingly, DPSs Motion should be denied.
A. The Documents Properly Have Been and Should Be Withheld From Disclosure Under the Deliberative Process Privilege.
As indicated above, the three documents whose disclosure is sought by DPS (ML051940095, ML051990237, and ML05060072) are e-mails exchanged by the Staff during the course of its review and consist of predecisional (i.e., prepared before issuance of a final agency document) and deliberative information, containing individual Staff members thought processes, views and/or opinions. In addition, they contain deliberative communications, in the form of analysis, evaluations, recommendations, proposals, or suggestions of individual staff members, rather than the final decision of the agency. See Vogtle at 198. The documents do not reflect final Staff decisions; rather, they are part of the Staffs deliberative process leading to final Staff decisions and, thus, are exempt from disclosure under the Commission precedents discussed above As discussed above, the Commission has an important interest in protecting the agencys deliberative process, since this process is essential to protect the free flow of opinions, information and ideas in decision making. The Licensing Board [should not overlook]
the interests of the Commission in maintaining the confidentiality of deliberative materials.
Vogtle, CLI-94-5, 39 NRC at 201. To hold otherwise would have a chilling effect on the frank
and open discourse which is required in the course of the Staffs review, and would thus impede the Staffs ability to engage in free and open discussions in the future.
The Staff has correctly applied the Commissions precedent and properly withheld these e-mails. First, ML051940095 and ML051990237 are e-mails wherein members of the staff are exchanging questions and views regarding the nature and scope of the Staffs review of Entergys station black out (SBO) coping strategy. These e-mails are clearly protected by the privilege as they contain the most basic deliberative information meant to be protected by the privilege. The e-mails convey a discussion between members of the Staff regarding the scope of the review to be undertaken, and not a final agency decision. The third document, ML052060072, is a more substantive predecisional deliberative document. It is an e-mail between members of the Staff that express one Staff members opinion on a matter that has not been decided, and proposes one alternative course of action and asks for further deliberation. In sum, the Staffs invocation of the privilege for these documents is consistent with Commission precedent.
In its Motion, DPS asserts that the Staff has improperly claimed that these documents are privileged. DPS argues that the documents being withheld reflect Staffs efforts to identify problem areas in Entergys analysis or areas in which Staff believes additional information is required. Motion at 7. Nevertheless, the weakness in DPS argument is evident in its own claim that the documents disclose areas in which Staff believes additional information is required. Id. (emphasis added). A Staff members belief that he or she needs additional information in order to make a final determination is exactly the kind of deliberation protected by the privilege. The same can be said for the Staffs efforts to identify problem areas. Id. Such matters constitute pure deliberation.
Further, DPS erroneously asserts that the information is more in the nature of factual information . . . . Id. Notwithstanding DPS speculative claims, these are documents that are
clearly meant to be withheld from public disclosure by Vogtle and its progeny. These documents are not factual in nature and contain purely deliberative information. That individual members of the Staff may cite to factual information they believe is important in making a decision does not suddenly transform the discussion into a purely factual recitation. Whatever facts are contained in the discussion, they are inextricably intertwined with the opinion portion, or otherwise would reveal the deliberative process of the agency . . . . Vogtle, CLI 94-05, 39 NRC at 198. Revelation of the facts contained in these messages would undermine the basis for the privilege in encouraging frank discussions in the course of decision-making. See Shoreham, ALAB-773, 19 NRC at 1346-47. The e-mails involved here are exactly the type of discourse among members of the Staff that the Commission sought to foster when it recognized the privilege in Vogtle. Therefore, the Staffs claim that these documents should be withheld should be upheld.
B. DPS Has Failed to Allege or Demonstrate an Overriding Need or Special Circumstances Necessitating Disclosure of the Documents.
Commission precedent clearly establishes that to secure the disclosure of documents which have been properly withheld under the deliberative process privilege, DPS is required to demonstrate that it should be afforded access to the information because of some overriding or special need for the information. See Shoreham, 19 NRC at 1341, 1343-44, 1345-46. In the instant case, DPS altogether fails to show that it has some overriding or special need for the documents; indeed, its Motion fails to show that DPS has any need at all for the sought-after information.
DPS first argues that the documents will no longer be pre-decisional once a decision is made, implicitly suggesting that because at some point in the future the documents may no
longer be pre-decisional that they should be disclosed now.4 Motion at 10. This argument, however, lacks meritit is well-established that documents do not lose their protection from disclosure under the deliberative process privilege once a final agency decision is made, for that would likewise have a chilling effect on the agencys ability to engage in free and open discussions. See, e.g., Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merril, 443 U.S. 340, 360 (1979); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-82-82, 16 NRC 1144, 1164 (1982). Second, DPS attempts to avoid its burden to demonstrate a special and overriding need for the information by arguing that the Staff has failed to prove that disclosure [of its information] would compromise the deliberative process.
Id. This approach, however, would improperly require the Staff to justify its claim of privilege and show some specific harm that would be caused by the disclosure of information in each document - even before any request for disclosure has been received - and it ignores Commission precedent, which clearly establishes (a) that the burden of demonstrating a need for this information, once a privilege has been asserted, rests with DPS; and (b) only after the requestor satisfies its burden is a balancing of the agencys and requestors interests to be undertaken. See Shoreham, 19 NRC at 1341, 1343-44, 1345-46.
Here, the sole argument asserted by DPS to support any claim that it has a special need for the privileged information consists of its claim that some allegedly important analysis, which it believes is contained in the three e-mails, would benefit DPS and be of assistance to it in carrying out certain unspecified public obligations. Motion at 11. Rather than provide any compelling argument which demonstrates that DPS has a special need for the information, DPS briefly and speculatively states that the information contained in these 4
This argument was specifically addressed in Shoreham, where the Appeal Board observed that the ultimate incorporation of deliberative material into a final public document did not establish a compelling need for the material. Shoreham, 19 NRC at 1343-44, 1345-46.
e-mails will provide important information that will materially assist DPS and that DPS should expect to . . . benefit from the insights of members of Staff. Motion at 11 (emphasis in original). This assertion, however, fails to establish an overriding or special need for the information. Moreover, DPS could not possibly show a special and overriding need for the information, in that the issues addressed in the withheld documents do not even relate to DPSs admitted contentions.5 Thus, as previously articulated by the Staff in correspondence with DPS, the documents pertain to the Applicants station blackout coping analysis, which is irrelevant here, in that DPSs two admitted contentions do not concern SBO. As such, it is hard to fathom under what circumstances DPS would have an overriding and special need for information that is unrelated to their contentions, which would otherwise be withheld from public disclosure under the predecisional deliberative process privilege. Therefore, DPS has failed to demonstrate that it should be granted access to information that has been properly withheld from public disclosure by the Staff.6 Finally, it should be noted that there is no basis for DPSs assertion that the Staff is abusing the deliberative process privilege and engaging in an ongoing practice of hiding otherwise discoverable information. Motion at 9. To the contrary, the Staff has compiled an extensive hearing file in this proceeding, and has properly identified in a privilege log each of the privileged documents that have been withheld from disclosure, along with the basis for each 5
DPSs contentions solely raise the issue of containment overpressure. The e-mails, however, relate to the Staffs review of Entergys SBO coping analysis. Since, as DPS points out, Entergy is not relying on containment overpressure to cope with SBO, the Staffs review of the SBO coping analysis is beyond the scope of DPS admitted contentions. See Motion at 4-5 (explaining that the licensee has amended its application and does not rely on containment overpressure to cope with SBO).
6 DPS, in its conclusion, invites the Board to order the Staff to withdraw its privilege claim for all documents that it has identified as deliberative and predecisional communications. See Motion at 11.
DPS offers no basis for this request, fails to describe any of these other documents, and fails to present any showing that it has a special need for all such privileged documents. Id. DPSs request is baseless and does not, in the least, comply with the Commissions requirement that parties seeking the disclosure of deliberative process information must demonstrate a special or overriding need for the documents.
asserted privilege. A review of the privilege log for predecisional deliberative documents indicates that each of the listed documents contains internal Staff discussions, which are precisely the type of information that the deliberative process privilege is intended to protect.
Moreover, the Staff has worked cooperatively with other parties, when disclosure has been requested, to review and reconsider its claim of privilege when appropriate. Indeed, the Staff has, in the interests of openness and cooperation among the parties, accommodated even untimely challenges by DPS to the Staffs assertion of privilege, providing disclosure of some documents which were previously withheld under a claim of privilege.7 There is simply no basis for any claim that the Staff has acted inappropriately in asserting the well-established deliberative process privilege.
CONCLUSION Based upon the foregoing, the Staffs decision to withhold the documents requested by DPS pursuant to the deliberative process privilege is valid, and DPS has failed to show any special or overriding need for the documents. DPSs motion to compel should therefore be denied.
Respectfully submitted,
/RA/
Antonio Fernández Counsel for NRC staff Dated at Rockville, Maryland this 12th day of September 2005.
7 In two instances, for example, the Staff has, on request, reconsidered its claim of privilege and disclosed documents to the parties. See, e.g., Letter from Antonio Fernández to Anthony Z. Roisman, dated August 24, 2005 (ADAMS Accession No. ML052370289); and Letter from Brooke D. Poole to Anthony Z. Roisman, dated August 3, 2005 (ADAMS Accession No. ML052200223).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE ) Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR )
OPERATIONS, INC. ) ASLBP No. 04-832-02-OLA
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS ANSWER TO VERMONT DEPARTMENT OF PUBLIC SERVICES MOTION TO COMPEL in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commissions internal mail system; and by e-mail as indicated by a double asterisk (**), this 12th day of September, 2005.
Alex S. Karlin, Chair** Anthony J. Baratta**
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (E-mail: ask2@nrc.gov) (E-mail: ajb5@nrc.gov)
Lester S. Rubenstein** Office of the Secretary**
Administrative Judge ATTN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 4760 East Country Villa Drive U.S. Nuclear Regulatory Commission Tucson, AZ 85718 Washington, DC 20555-0001 (E-mail: lesrrr@comcast.net) (E-mail: HEARINGDOCKET@nrc.gov)
Office of Commission Appellate John M. Fulton, Esq.
Adjudication* Assistant General Counsel Mail Stop: O-16C1 Entergy Nuclear Operations, Inc.
U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Washington, DC 20555-0001 White Plains, NY 10601
Jay E. Silberg, Esq.** Sarah Hofmann, Esq.**
Matias Travieso-Diaz, Esq.** Special Counsel Douglas Rosinski, Esq.** Department of Public Service Pillsbury Winthrop Shaw Pittman, LLP 112 State Street - Drawer 20 2300 N St., NW Montpelier, VT 05620-2601 Washington, DC 20037-1128 (E-mail: sarah.hofmann@state.vt.us)
(E-mail: jay.silberg@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com douglas.rosinski@pillsburylaw.com)
Anthony Z. Roisman, Esq.** Raymond Shadis**
National Legal Scholars Law Firm Staff Technical Advisor 84 East Thetford Rd. New England Coalition Lyme, NH 03768 P.O. Box 98 (E-mail: Edgecomb, ME 04556 aroisman@nationallegalscholars.com) (E-mail: shadis@prexar.com shadis@ime.net)
Jonathan M. Block, Esq.** Jonathan M. Rund, Esq.**
94 Main Street Law Clerk P.O. Box 566 Atomic Safety and Licensing Board Panel Putney, VT 05346-0566 Mail Stop: T-3F23 (E-mail: jonb@sover.net) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: jmr3@nrc.gov)
Respectfully submitted,
/RA/
Antonio Fernández Counsel for NRC Staff