ML053210062

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Letter in Response to Letter of November 14, 2005, Concerning the NRC Staff'S Monthly (Now Bi-Weekly) Updates of the Hearing File in This Proceeding
ML053210062
Person / Time
Site: Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date: 11/15/2005
From: Sherwin Turk
NRC/OGC
To: Roisman A
National Legal Scholars Law Firm, PC
SECY RAS
References
50-271-OLA
Download: ML053210062 (3)


Text

November 15, 2005 Anthony Z. Roisman, Esq.

National Legal Scholars Law Firm, P.C.

84 East Thetford Road Lyme, NH 03768 In the Matter of Entergy Nuclear Vermont Yankee, LLC, et al.

(Vermont Yankee Nuclear Power Station)

Docket No. 50-271-OLA (Extended Power Uprate)

Dear Mr. Roisman:

I am writing in response to your letter of November 14, 2005, concerning the NRC Staffs monthly (now bi-weekly) updates of the hearing file in this proceeding. In particular, you refer to (a) two requests you have submitted on behalf of the Vermont Department of Public Service (DPS), dated October 3 and November 3, 2005, for the production of documents identified on the Staffs pre-decisional deliberative process privilege logs, and (b) a previous agreement you had reached with Brooke Poole, Esq., on behalf of the Staff, pertaining to procedures for handling your requests for documents and an extension of time for DPS to file any motions to compel. A response to the specific document requests contained in your letters of October 3 and November 3, 2005, will be provided by the Staff in a separate letter.

I have previously expressed my views concerning your former agreement with the Staff, in my letter to you dated September 23, 2005. Therein, I expressed my belief that the agreement you reached with Ms. Poole, as you described it, would provide you with an unduly extended time limit for filing any motions to compel - and I clearly informed you that the Staff would not adhere to that agreement in the future. In this regard, I stated as follows:

[W]hile I am ready and willing to discuss any request for documents in advance of your filing a motion to compel, henceforth any extensions of time for the filing of a motion to compel should be discussed with me on a case-by-case basis. In the absence of any agreement for such an extension on a case-by-case basis, you should not assume that the Staff consents to an extension of the time for the filing of a motion to compel.

In our subsequent telephone conversation, I further explained that your interpretation of the agreement you had reached with Ms. Poole could constitute an unauthorized and improper extension of the Licensing Boards mandatory filing requirements in this proceeding - and, further, that this procedure would impose an excessive burden on the Staff, by requiring the Staff to re-review each document that you may request, after having previously reviewed it to determine if the privilege applies and determining that it should be withheld and identified on the privilege log.

Anthony Z. Roisman, Esq.

November 15, 2005 Page 2 Your letter of November 14, like your letters of October 3 and November 3, 2005, cited therein, fails to recognize that my letter of September 23 effectively terminated any previous agreement that may have existed between DPS and the Staff relating to your document requests and the time in which DPS is required to file any motions to compel. In light of my clear disavowal of any such previous agreement, I see no basis for your repeated insistence that such an agreement continues to exist. Instead, as indicated in my letter of September 23, while I am ready and willing to discuss specific document requests with you, any request for an extension of time should be discussed with me on a case-by-case basis.

In your letters and in your pending motions to compel, you have repeatedly requested and/or sought to compel the production of privileged documents, based upon what appears to be an incorrect and unfounded interpretation of the deliberative process privilege. Our disagreement as to the applicability and scope of the deliberative process privilege is recounted in my letter of September 23, in which I stated as follows:

In our telephone discussion of September 16, you stated your view that the pre-decisional deliberative process privilege does not begin to apply until the Staff has concluded its effort to gather information and has commenced to deliberate on whether to grant the application. You were unable to cite any legal authority for that view, and I am not aware of any valid basis for it. In fact, the deliberative process includes various steps, including deliberations as to the sufficiency of the information contained in the application, and the need for further information in order to reach a final regulatory decision. Your interpretation would render the privilege meaningless; further, your request for so many internal NRC Staff communications, without showing any reason why the documents should be disclosed, represents a fundamental and unfounded challenge to the deliberative process privilege.

Given this fundamental disagreement as to the proper scope and applicability of the deliberative process privilege, I see no reason for DPS and the Staff to engage in repeated argument. The issue raised in your requests is not whether the documents were properly described in the privilege log, but whether they are properly protected from disclosure under the privilege. That issue, as well as whether DPS has identified any compelling need to obtain the documents, is now pending before the Licensing Board, in connection with your first and second motions to compel. I do not believe further argument between us would serve any useful purpose.

Finally, I do not agree with your suggestion that there has not been a good faith effort on the Staffs part to resolve these disputes short of filing motions to compel. Like DPS, the Staff wants . . . to do our jobs, not [to engage in] ongoing procedural litigation. Unfortunately, when I invited your suggestions as to how to resolve this dispute, the only alternatives you suggested would essentially require the Staff to waive the privilege (e.g., you suggested that the States expert should be allowed to see all of the documents withheld under the deliberative

Anthony Z. Roisman, Esq.

November 15, 2005 Page 3 process privilege, and the State would then move to compel only those documents which it found to be of particular interest). I would not describe that as a good faith suggestion.

The Staff recognizes that DPS has a valid interest in the proper conduct and outcome of this proceeding. At the same time, the Staff has an interest in protecting its ability to engage in open and unfettered deliberations, in order to assure the reliability of the agency's decision-making process. Consistent with these principles, the Staff has properly compiled and regularly updated the hearing file for use by the parties and the Licensing Board in this proceeding, in accordance with the Commissions regulations in 10 C.F.R. § 2.336(b)(1)-(4). Further, in accordance with 10 C.F.R. § 2.336(b)(5) and well-established legal precedent, the Staff has compiled its privilege logs and identified therein those documents which it believes should be withheld as privileged. I regret that you do not agree with the Staffs view of the scope and applicability of the deliberative process privilege in this proceeding.

Please do not hesitate to contact me in the future if there are specific documents which you believe should be produced. As I stated in my letter of September 23, I remain ready and willing to discuss any request for specific documents which DPS may have. I do not believe, however, that repeated arguments over the general scope and applicability of the deliberative process privilege, or the existence of a former agreement which has now been terminated, would constitute a productive use of our time or serve to expedite the Staffs consideration of any specific document requests which you may have.

Sincerely,

/RA/

Sherwin E. Turk Counsel for NRC Staff cc: Sarah Hofmann, Esq.