ML11140A135

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State of New York'S Reply to NRC Staff'S Answer to the State'S Motion to Compel the Production of Documents
ML11140A135
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 05/16/2011
From: Jeremy Dean, Sipos J
State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR, RAS E-524
Download: ML11140A135 (22)
v • d • e


Text

DOCKETED May 17, 2011 (8:30 a.m.)

OFFICE OF SECRETARY UNITED STATES RULEMAKINGS AND NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF ATOMIC SAFETY AND LICENSING BOARD

X In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. May 16, 2011

x STATE OF NEW YORK'S REPLY TO NRC STAFF'S ANSWER TO THE STATE'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224 1t:- PLX-7 -ý7--

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Table of Contents INT R O D U CT IO N ............................. .................................................................................. 1 NEWLY-DISCLOSED FACTS ....................................................................................... I Information Systems Laboratories, Inc..: ..........................................................................

Sandia National Laboratories ........................................ 3 A R GU M EN T ......................................................................................................................... 5 I. STAFF'S ANSWER DOES NOT ADDRESS THE STATE'S AR G U ME N TS.................................... 5............................

.5 A. Staff Should Produce Documents Reviewed, Relied Upon, or Generated by its Expert Witnesses at Sandia ........................................ 7 B. Staff Has Waived Privilege Over Sandia- and ISL-generated Documents by Selectively Citing From Them in the FSEIS ...................... 8 C. Documents that were Legally Required to be Created are not Protected by the Work Product Doctrine ............................................ 11 II. MOST OF THE DOCUMENTS NRC LISTS IN ITS APPENDICES ARE FACIALLY NOT PRIVILEGED ............................................................. 14 Staff A ppendix A .............................................................................................. 15 Staff Appendix B ............................................................................................... 16 Staff Appendix C ............ ................................. 16 C O N C L U SIO N ...................................................................................................................... 17 i:

INTRODUCTION NRC Staff's May 9, 2011 Answer ("Staff Answer"), coupled with previous Staff statements, make clear the following:

(1) Sandia National Laboratories ("Sandia")is serving as an expert witness for NRC Staff (Staff Answer at 13);

(2) NRC Staff's FSEIS relied on Sandia staff and reports (FSEIS at Vol. 1 at 5-4 and Vol. 3 at G-22 to G-29); and (3) NRC Staff's DSEIS relied on Information Systems Laboratories, Inc. ("ISL") staff and reports (Staff Answer at 11-12; Affidavit of Donald G. Harrison).

Notably, the Staff Answer and subsequent amendments thereto still do not explicitly identify the documents and studies referenced in the FSEIS. Moreover, the Staff Answer reveals, for the first time, that its principal basis for refusing to list or produce many Sandia and ISL-generated documents, is Staff's view that those documents are purportedly protected under the work product doctrine. Staff Answer. at 19-20. As discussed below, the Staff Answer misconstrues and misapplies both NRC disclosure requirements and the work product doctrine and provides further support-for the State's Motion to Compel.

NEWLY-DISCLOSED FACTS Information Systems Laboratories, Inc. The Staff Answer reveals, for the first time, the true nature of the work performed by ISL and Sandia. With regard to ISL, Staff now discloses that:

ISL was tasked to perform a "Preliminary Evaluation," in which it would "conduct a preliminary review of the applicant's SAMA analysis"; "document the results of the preliminary evaluation with possible open items in a draft TER

[Technical Evaluation Report]"; "identify any additional information needed to resolve possible open items"; and "support interactions with the applicant" for any requests for additional information that may be issued. ISL was also tasked to "update the draft TER to include discussions reflecting the resolution of any I

previously identified open items, and overall conclusions of the review"; and "incorporate NRC comments in the final TER."...

ISL delivered its Preliminary Evaluation and Final Evaluation to the Staff, in or before December 2008. ISL's work product was reviewed and augmented by the Staff, and was then cited in Chapter 5 and Appendix G of the Staffs Draft Supplemental Environmental Impact Statement ("DSEIS") published on December 22, 2008.1 Staff Answer, Affidavit of Donald G. Harrison ("Harrison Affidavit") at 2, ¶¶ 3-4. Thus, Staff has relied on a final ISL report in its environmental analysis - but has not produced that report.

The document is not a deliberative process document, since it has been relied upon to support Staff s conclusions in the FSEIS. In short, it is not "pre-" decisional, but rather, it is "decisional." Nor can Staff claim it was developed in anticipation of litigation since, as the Harrison Affidavit admits, ISL was engaged in June 2007, shortly after Entergy filed its application and before the State filed any contentions. Id. In addition, it apparently includes analyses and other factual material that would not be subject to the deliberative process privilege.

According to the contract between ISL and NRC, ISL was to "initiate and complete the SAMA review for Indian Point Units 2 and 3." Statement of Work.for J-4064 Task Order No. 35 (ML071940013) at 2 (cited in Harrison Affidavit, at 2, n.1).

Contrary to this assertion, the ISL work product was not cited in Chapter 5 or Appendix G of either the DSEIS or the FSEIS. The only reference to ISL work was "The NRC staff performed its review with contract assistance from Information Systems Laboratories, Inc."

DSEIS, Vol. 1 at 5-4 and FSEIS, Vol. 1 at 5-4; see also Harrison Affidavit, at 2 n.2. In addition, if Appendices A, B, and C contain the universe of documents generated by ISL, as the Staff Answer asserts, it is not apparent that the "final TER" has ever been identified or disclosed, much less produced. The ISL documents, all listed in Appendix A, are "draft RAIs regarding SAMAs," "draft SAMA RAIS with comments, ."draft RAIs," "draft SER input on SAMAs,"

and "draft SER Appendix G."

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The final ISL work product consisted of the following:

Final Evaluation

a. ISL shall review the applicant's RAI responses, and perform additional assessments, as appropriate. Any additional information needed to resolve the previous open items shall be identified by ISL, and provided to the NRC in the form of an RAI for follow-up discussion with the applicant. ISL shall support further interactions with the applicant, as appropriate, to ensure that the issues are well understood and to arrive at an acceptable path to resolution.
b. ISL shall update the draft TER to include discussions reflecting the resolution of any previously identified open items, and overall conclusions of the review.
c. ISL shall incorporate NRC comments on the updated TER and issue the document as a final TER.

Id. at 4. There can be no doubt that the ISL document (or documents) are "supporting the NRC staff's review of the application" and thus should have been disclosed. 10 C.F.R. § 2.336(b)(3).

Sandia National Laboratories. With regard to Sandia, Staff now asserts that all of Sandia's work was performed solely in order to respond to contentions admitted in this proceeding that relate to the SAMA analysis. Staff Answer, Harrison Affidavit at 3. However, regardless of whether SAMA-related matters were raised in a contention, they were also the subject of comments on the DSEIS that Staff nevertheless would have been obligated to address in the FSEIS. 10 C.F.R. §§ 51.91 (a)(1), 51.91 (3)(b). Staff acknowledges as much when it states in the FSEIS that "NRC staff performed its [SAMA] review with contract assistance from Information Systems Laboratories, Inc. and Sandia National Laboratory," making clear that the reports were not produced solely to challenge the State's contentions. FSEIS Vol. 1 at 5-4.

It is also apparent from the Affidavits and Appendices accompanying the Staff Answer that the process of document disclosure, particularly documents for which a deliberative process privilege is claimed, has been far from timely or comprehensive. The David J. Wrona Affidavit

("Wrona Affidavit".) describes the process used by Staff in making its 27 monthly disclosures in 3

this case:

...[S]taff has disclosed or listed in its privilege logs, all documents in the possession of its employees or consultants that are potentially responsive to the State of New York's SAMA-related document requests, with two exceptions: (1) the Staff's privilege logs do not list potentially responsive documents that are protected from disclosure by the work product ("WP") doctrine and/or attorney-client ("AC") privilege, unless those documents are also subject to the deliberativeprocessprivilege (in which case, the deliberativeprocessprivilege was asserted), and (2) the Staff has recently obtained certain potentially responsive documents that were not previously disclosed or identified as privileged; the documents falling within these two exceptions are listed in Appendices B and C to the Staff Answer to New York's Motion to Compel...

Wrona Affidavit at 2, ¶ 4 (emphasis added). However, NRC Staff Disclosure 26 (March 31, 2011) and Disclosure 27 (April 30, 2011) identify nine documents dated between January and December 2009 that are disclosed for the first time in 2011.2 In addition, Staff Answer Appendix B, which lists documents not previously disclosed on any privilege log, now lists 3 documents for which the deliberative process privilege is claimed, which is contrary to the Wrona Affidavit's assertion that such documents would have been disclosed on previously filed privilege logs.3 The State is concerned that the Staff Answer creates the misleading impression that Staff's previous disclosures have been more comprehensive than they actually were. The Staff Answer represents to the Board that Appendix A contains a listing of the disclosures that Staff made previously in monthly deliberative privilege logs with the sole addition of the work product doctrine and/or attorney client privilege claims. The Staff Answer describes Appendix A as "listing the Sandia-and ISL-related SAMA documents which the Staff has previously identified and withheld under the deliberative process privilege - some of which are now designated, as 2 These 9 documents are DPP-26-23, 30, and 31 and DPP-27-16, 17, 18, 19, 20, and 21.

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well, as protected from disclosure by the attorney-client and/or work product privileges" and asserts that "[i]n Appendix A, the Staff has assembled a list of documents that were previously identified in the Staff's logs as being withheld under the deliberative process privilege." Staff Answer at 2, n.2 and at 19. However, in a number of critical respects, Appendix A does not reproduce Staff's previous disclosures but represents, instead, a substantially-enhanced disclosure designed, apparently, to refute the State's observation in its Motion to Compel that Staff s privilege log disclosures were deficient because, except for the initial disclosure, Staff never listed a recipient of a document and for many of the disclosures the "comment" was uninformative and did not provide an adequate statement of the basis for the privilege claimed.

4 State of New York Motion to Compel at 16, n.9.

ARGUMENT

1. STAFF'S ANSWER DOES NOT ADDRESS THE STATE'S ARGUMENTS Although Staff provides considerably more information about the documents being withheld and how they came into existence, it is remarkable that Staff still has not disclosed the precise documents that formed the basis for statements contained in the FSEIS and that the State identified in its Motion to Compel at 12-14. The State continues to seek those documents. Staff does not attempt to explain how it can be that when the FSEIS asserts that "Sandia performed a comparison of the decontamination cost factors derived from the Site Restoration study to those 3 These 3.documents are IC-021, 022, and 023.

4 On May 11, the State raised other concerns about numbering and description of documents contained in the May 9 Appendix A, and, in response, Staff has now acknowledged various errors in that document and is filing corrections thereto. See May 13, 2011 letter from NRC Staff Counsel Sherwin Turk to ASLB (e-mailed at 7:19 PM). It also appears to the State that the referenced DPP-26-017 in Appendix A should not have been DPP-26-012, but should, 5

used in the SAMA analysis" (FSEIS, Vol. 3 at G-8), there is no document generated by Sandia that records that comparison or how the comparison is itself a deliberative process document or subject to work product protection. Similarly, when the FSEIS asserts that "Sandia performed an independent assessment of the population data within a 50-mile radius of Indian Point using the SECPOP2000 computer program," Staff appears to state that neither Sandia nor Staff generated or identified My documentation recording that assessment, nor does Staff assert any basis for.

how the assessment is itself a deliberative process document, or subject to work product protection.

Staff makes generalized, and often incomplete, assertions about the legal principle applicable to its disclosure obligations without joining issue with the legal analysis provided in the State's Motion to Compel, other than to disagree with it. In this Reply, the State will not repeat those arguments. 5 However, now that Staff has decided to rest most of its privilege claim on the work product doctrine, it is appropriate to look at the prevailing law as it relates to that doctrine. Three concepts are particularly applicable here. First, NRC hired Sandia to provide expert witness testimony in this license renewal proceeding. Second, by disclosing inthe FSEIS the essence of the information in a document which Staff now asserts is privileged, Staff waived privilege as to theremainder of the document Third, the work product doctrine does not apply.

to any document that was otherwise required to be produced pursuant to prevailing law, even if it may also be useful in litigation.

instead, have been DPP-26-014.

5 For example, in Footnote 39 of its Answer, Staff asserts that its disclosure obligations do not include the provisions .of§ 2.336(a), even though it is now a party, but fails to address the 6

A. Staff Should Produce Documents Reviewed, Relied Upon, or Generated by its Expert Witnesses at Sandia In short, because Staff's FSEIS relies on Sandia and ISL work and documents, Staff must produce those documents. CEQ regulations, which NRC has adopted, with exceptions not relevant here (10 C.F.R. § 51.10(a)), require an agency to disclose the documents upon which it relies for conclusions and statements contained in the FSEIS. 40 C.F.R. §§ 1502.18(b) (an Appendix shall include "material which substantiates any analysis fundamental to the impact statement"), 1502.21 (requiring incorporation by reference of material relied upon and making that information "reasonably available for inspection"), 1502.24 (the FSEIS "shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement"), and 1501.1 (c)(the agency shall require "that relevant environmental documents, comments, and responses be part of the record in formal rulemaking or adjudicatory proceedings").

The Staff Answer makes clear that Staff retained Sandia in July 2009 to help respond to the State's contentions. "Sandia transmitted to the Staff a work proposal to provide technical assistance to the Staff in its assessment of the State's contentions and in preparing for and testifying at evidentiary hearings on the contentions." Staff Answer at 13. Apparently, Staff believes that under the obligations imposed on it by 10 C.F.R. § 2.336(b)(3), which it asserts are broader than those imposed on other pai'ties (Staff Answer at 15, n.39), it need not disclose the documents reviewed, relied upon, and finally generated by its testifying experts. It is difficult to see how such documents are not documents "supporting the NRC staff s review of the application." 10 C.F.R. § 2.336(b)(3).

State's reasoned argument for why that position is wrong. See Motion to Compel at 6-7.

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In addition, nowhere do the NRC regulations exempt NRC Staff s experts from the disclosure obligations that attach to all parties' experts. If Staff's position were correct, and its (b)(3) obligations did not include the documents reviewed, relied upon, and finally generated by its testifying sexperts, it would allow Staff experts, unlike all other testifying experts, to hide the basis for, and the underlying work generated to support, their conclusions. If that were a correct reading of § 2.336(b)(3), it would provide additional support for the proposition that once Staff became a party to the proceeding, it became subject to the same disclosure obligations as other parties pursuant to 10 C.F.R. § 2.1202(b)(3) because unless such disclosure obligations are imposed on Staff, it will have gained a substantial strategic advantage over other parties without justification.

B. Staff Has Waived Privilege Over Sandia- and ISL-generated Documents by Selectively Citing From Them in the FSEIS.

The purpose of both the deliberative process privilege and the work product doctrine is to protect, the internal thought processes of the authors of the documents from disclosure.

Department of Interior v.. Klamath Water Users ProtectiveAss'n, 532 U.S. 1, 8 (2001). Both doctrines make allowances for disclosure of facts so long as they are separable from the opinions. Here, the State is not concerned With opinions being disclosed, because the FSEIS already discloses the opinions of Sandia experts and even a general description of their reasoning in reaching those opinions. For example, the FSEIS states that "Sandia noted that the primary constituent in weapons grade plutonium, Pu239, is an alpha 38 emitter, whereas the primary contaminant from an NPP accident, Cs137, is a gamma emitter" (FSEIS, Vol. 3 at G-23) and "Sandia considered the decontamination activities described in the Site 8 Restoration study together with the differences in health hazards posed by Pu239 versus Cs 137, and concluded that 8

the activities required to support clean-up of moderate plutonium contamination align more closely with clean-up activities for heavy cesium contamination. Sandia performed the comparison of decontamination cost values on this basis." FSEIS, Vol. 3 at G-24... Staff concedes it has already disclosed Sandia's opinions and reasoning in the FSEIS when it states:

The State, however, fails to explain why the disclosures which have already been made by the Staff, including the lengthy and detailed discussion of the State's contentions in FSEIS Appendix54 G, fails to provide sufficient information for the State to prepare its case.

54 Upon filing its statement of position and testimony on New York Contentions 12 and 16, the Staff anticipates that it would provide a comprehensive discussion of the bases for its position and testimony, which may include testimony by the Sandia personnel who were involved in assessing the contentions. To the extent that any such testimony exceeds the scope of the FSEIS discussion, the State would have an opportunity to address such matters in its rebuttal testimony.

Staff Answer at 23-24 and n.54. In short, Staffs position is that it has disclosed the opinions and the bases for the opinions and, because Staff thinks that is enough for the State to make its case, no further disclosures are required. As the State indicated in its Motion to Compel, its expert has concluded that without the underlying analyses that support the conclusions and the reason upon which the FSEIS relies, it is not possible to fully address the issues. Motion to Compel at 15, citing Errors and Omissions in NRC Staff's Economic Cost Estimates of Severe Accident Mitigation Alternatives Analysis Contained in December 2010 Indian Point Final Supplemental Environmental Impact Statement (FSEIS), NUREG-1437, Supplement 38 (David I. Chanin)

February 2011 ("Chanin 2011 Report") at 1-2. Staff does not join issue with that expert opinion, nor offer a counter expert opinion to support its view that the State has enough information. Of course, controlling disclosure obligations do not stop at the point where the disclosing party believes it has provided all its opponent needs to make its case.

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Rule 502(a) of the Federal Rules of Evidence, which are based on the concepts of fairness, make clear that selective disclosure of allegedly protected information constitutes a waiver of the remaining information concerning the same subject matter:

(a) Disclosure made in a Federal proceeding or to a Federal'office or agency; scope of a waiver. When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:

(1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.

FED. R. EvID. 502. In adopting this Rule, the Explanatory Note (Revised Nov. 28, 2007) emphasized that waiver occurs in "situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner," and "a party that makes a selective, misleading presentation that is unfairto the adversary opens itself to a more Complete and accurate presentation." West, Federal Civil JudicialProcedureand Rules, at 440 (2011 Edition). In this case, Staff has disclosed portions of the communications it received from ISL and Sandia in the FSEIS, specifically relying on portions of those communications including opinions and reasoning. It cannot now shield from disclosure all the ISL and Sandia documents related to the subject matter of those disclosures and thereby deprive the State of the ability to fully refute those FSEIS opinions and reasoning.

NRC has recognized this same principle where, as here, selected portions of the content of the allegedly privileged communication have been disclosed-for a waiver to occur, "the specific content of the privileged communication must be disclosed; the mere discussion of facts which were the subject of the communication is insufficient to constitute waiver." 4 Moore's Federal Practice, 10

¶ 26.60[2],26-203, ¶ 26.64[4],26-390 et seq. (1984). The rationale underpinning the courts' recognition of waiver rests with the element of confidentiality. Once originally confidential information has been released, the privilege cannot be sustained.

Kerr-McGee Chemical Corporation.(West Chicago Rare Earths Facility) (Kress Creek Decontamination) LBP-85-38, 22 N.R.C. 604, 619 (Sept. 26, 1985). Federal case law reaches the same conclusion, that Staff cannot selective disclose the portions of documents that it finds favorable without waiving any claim to keep the remainder of the. document confidential:

The attorney-client privilege is intended "to encourage clients to make full disclosure to their attorneys," recognizing that sound advice "depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (internal quotation marks omitted). The work product doctrine is a "qualified privilege" that protects "certain materials prepared by an attorney acting for his client in anticipation of litigation." UnitedStates v. Nobles, 422 U.S. 225, 237-38 (1975) (internal quotation marks omitted). Both privileges may be waived. United States .v. Plache, 913 F.2d 1375, 1379 (9th Cir. 1990)

(attorney-client); Nobles, 422:U.S. at 239 (work product); see also Tennenbaum v.

Deloitte & Touche, 77 F.3d 337, 340-41 (9th Cir. 1996) (finding that waiver prevents selective disclosure - disclosing that which supports a cause while hiding the unfavorable).

Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010).

C. Documents that were Legally Required to be Created are not Protected by the Work Product Doctrine A central tenet of the work product doctrine is that the reason the document has come into existence must be solely in anticipation of litigation, and that if the document would have otherwise existed because it was required by law, the doctrine does not apply.

Applicant objects to describing or producing drafts of documents relating to the "BCAP" (Braidwood Construction Assessment Program), "BCAP Quality Assurance," "corrective action reports," and "Corrective Action Program."

Applicant asserts either the attorney-client or work product privilege on the grounds that its counsel played a substantial role in preparing these documents and that they were prepared in the anticipation of litigating the issues which they-address. Applicant's Response at 10. Nowhere in the motion papers is there a

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description of the aforementioned programs or reports. As we understand them, however, these programs and reports were assumed by Applicant under its obligations to NRC Staff and the Commission's regulations. That the drafts may have-been prepared with an eye towards litigation and by Applicant's attorneys, rather than its technicalstaff and consultants, should be of more interest to NRC's technical staff than to the Licensing Board. The input of counsel to documents required under the regulatory process and otherwise discoverable cannot immunize these documents from discovery. Counsel in this case were assisting in a management function that is outside the scope of both attorney-client and work product privilege. To the extent that these drafts and other documents relate to the quality assurance issues admitted in this proceeding, they should be divulged.

Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units I and 2) 23 N.R.C. 177, 179 (March 28, 1986).

To be privileged under 26(b)(3) and 10 CFR 2.740(b)(2), the Still memoranda must have been prepared in anticipation of litigation by a party, his attorney, or another representative of that party. Furthermore, materials developed "in the ordinary course of business or pursuant to public requirements unrelated to litigation" are not given immunity under 26(b)(3). The purpose of the Rule is to shield each attorney's thought-processes and preparatory efforts from those cf his adversary so as not to disclose trial strategy or legal conclusions.

Kerr-McGee, 22 N.R.C. 604 (footnote omitted); see also Advisory CommitteeNotes accompanying 1970 Amendments to Rule 26(b)(3) of the Fed. Rules of Civ. P. ("Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision." (Citations omitted)); West, FederalCivil JudicialProcedure and Rules, at 154 (2011 Edition); accordLong Island Lighting Co. (Shoreham Nuclear Power Station)(Emergency Planning) LBP-82-82, 16 N.R.C. 1144 (Sept. 22, 1982).

Staff rejects these arguments citing United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998), for the proposition that a document that was produced for litigation but also served another purpose is still entitled to work product protection.. Staff Answer at 21. However, Staff 12

ignores that case's important caveat to that proposition, a caveat that tracks the decision in Commonwealth Edison, cited above:

Conversely, it should be emphasized that the "because of' formulation that we adopt here withholds protection from documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation. It is well established that work-product privilege does not apply to such documents. See Fed. R. Civ. P. 26(b)(3), Advisory Committee's note ("Materials assembled in the ordinary course of business... are not under the qualified immunity provided by this subdivision."); see, e.g.,

National Union Fire, 967 F.2d at 984. Even if such documents might also help in preparation for litigation, they do not qualify for protection because it could not fairly be said that they were created "because of' actual or impending litigation.

See Wright & Miller § 2024, at 346 ("even though litigation is already in prospect, there is no work-product immunity for documents prepared in the regular course of business rather than for purposes of the litigation").

United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).

Although NRC Staff seeks to avoid the holding of these cases by characterizing the Sandia work as done in anticipation of litigation, it is clear the work would have hadto be done to meets its NEPA obligations. See 10 C.F.R. §§ 51.91(a)(1), 51.91(3)(b). The situation here is closely analogous to the situation in Commonwealth Edison where applicant's lawyers were actively involved in developing documents that would be used in litigation but which documents were required to be produced as part of the applicant's obligations under NRC regulations.

There, the Board held "input of counsel to documents required under the regulatory process and otherwise discoverable cannot immunize these documents from discovery." Commonwealth Edison, 23 N.R.C. at 179. Likewise, here, Staff s self-serving designation of the Sandia documents cannot convert the reality of their regulatory necessity into merely discretionary documents produced solely for litigation.

Staff retained ISL before any contentions had been filed to help it evaluate Entergy's 13

SAMA analysis for the purpose of meeting Staff obligations under 10 C.F.R. § § 51.71(a) and (d).

It retained Sandia to help it address concerns raised regarding the adequacy of the DSEIS, which also happened to be addressed separately in contentions, for the purpose of meeting Staff obligations under 10 C.F.R. §§ 51.91(a)(1) and 51.91(3)(b) to respond to those concerns. Thus, the work done by ISL and Sandia is not qualified work product, and Staff may not refuse to disclose those documents upon which it relied in reaching its conclusions in the FSEIS. Placing the discussion of much of the critical comments about the DSEIS into Appendix G of the FSEIS and asserting that the analysis represents rebuttal to the State's contentions does not eliminate the fact that the work done and FSEIS analyses were in fulfillment of a legal obligation imposed on Staff by NRC Regulations.6 II. MOST OF THE DOCUMENTS NRC LISTS IN ITS APPENDICES ARE FACIALLY NOT PRIVILEGED In its May 9 Answer, Staff has now provided all the information it intends to provide regarding the nature of the documents which it claims are protected from disclosure. For the vast majority of those documents the information Staff provides either fails to support the claim for protection, or demonstrates that the claim is baseless. The following is a brief analysis of those documents withheld that appear, at least from Staff's limited disclosure information, to be relevant to the State's request - i.e., to be documents that underlie the FSEIS's opinions and 6 Staff makes the circular argument that because documents that it relies upon in the FSEIS do not have to be disclosed if they are protected, it follows that documents that it relied upon in the FSEIS are not, for that reason, subject to disclosure. Staff Answer at 23, n.51. Since Staff is required to address issues raised in DSEIS comments, the documents upon which it relies to address those issues must be produced unless they have an independent reason for being withheld. In addition, once the document's opinions, reasoning and conclusions are disclosed in the FSEIS, any protection with respect to the remainder of the document and related documents is waived. See discussion supra, pp. 8-10.

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conclusions, particularly the statements contained in FSEIS Vol. 3, Appendix G:

Staff Appendix A DPP-00-302, 309, 315 - Although all these are referred to as "draft SER Appendix G (SAMA)" or "draft SER input on SAMAs" they are the only ISL documents disclosed that c6uld be the "Final TER" referenced in the ISL contract with NRC and thus should be disclosed.

  • DPP- 10-001 - This appears to be a document about weather which is presumably factual in nature and not subject to protection.

" DPP-10-004 - This is a "Table comparing Population in ER vs. SECPOP" and thus contains non-protected facts.

" DPP- 10-006, 007 - these appear to be factual documents regarding wind and, according to DPP- 10-009, DPP- 10-007 is probably "Weather runs," which suggests computer code output.

  • DPP-0 10-012 - this is likely a final report from Sandia since no similar document appears as final.

" DPP-18-005, 006 - these are likely final reports from'Sandia since no similar report appears as final.

" DPP-25-045 - this is the most complete disclosure and illustrates the over-use of the concept of "opinion" as it really represents statements about facts needed to do the proper analysis and is only "opinion" in the sense that any statement of "fact" would be an "opinion" that the fact is true.

0 DPP-26-017(corrected) -* this is a 212 page "SAMA Reanalysis Using Alternate Meteorological Tower Data" and is mischaracterized as an "internal discussion." It is an analysis and may be one of the Sandia generated analyses used in support of the FSEIS.

" DPP-27-016 to 021 - these late disclosed documents (all are dated December 2009 but disclosed in 2011) are between Sandia employees with no NRC involvement and thus cannot possibly be part of the deliberative process, and all involve analyses of SAMA related concerns raised by New York in its March 18, 2009 DSEIS comments. The documents are also classified as "draft" but the "final" version is never disclosed, suggesting these are the final reports from Sandia on the identified subjects.

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Staff Appendix B

  • IC-017 - these appear to be meteorological data and thus facts that should be disclosed.
  • IC-01 8 - this report is internal to Sandia and thus cannot be NRC work product. It also addresses issues raised in the State's DSEIS comments.
  • IC-025 - although this is called a "recommendation on additional research" the document is entitled "Table" which indicates it is-factual in nature, not opinion. In addition, it is internal to Sandia.

" IC-026 - this is a review of modeling, not transmittal of opinion. The FSEIS offers conclusions about modeling which apparently rely on this document.

" IC-027- this document is the "Task I report" and only, the comment suggests it is "draft." It is Sandia's technical review. While Staff claims it is an attorney/client.

communication, the underlying document was prepared by Sandia, that is not a client of the NRC Staff attorney. The transmittal memo sending the document to NRC personnel is not the focus of the Sate's request, but the State seeks the Sandia "Task 1 report."

Staff Appendix C

  • NIA-001, 002 (this document appears to be in ADAMS at ML071940013), 003-010, 028, 058, 059, 061,073 - These are contracting documents authored by NRC or Sandia and cannot be deliberative process or work product. Their contents, as in the case of NIA-002 (related to ISL), provide insights into the actual work done by Sandia and the final deliverable, which helps to identify the nature of the documents and why they should be disclosed. In addition, to the extent the documents contain proprietary material, the State has signed appropriate confidentiality agreements entitlingit to receive proprietary information in this proceeding.

" NIA-01 1-027 ,- These documents are communications between Sandia employees. None are authored by attorneys. Thus, none can be protected as work product as they do not disclose attorney thinking. To the extent they are drafts of documents that are eventually produced as final, their production is not required pursuant to the agreement of the parties. However, to the extent the attorney/client privilege is claimed and no attorney is either the author or recipient, the privilege is inapplicable. See NIA-020, 021, 023, 024, 026, 027.

" NIA-029-057, 060, 062-072 - all of these documents are claimed to be work product, but none are prepared by attorneys; all are communications between Sandia employees without any NRC author or recipient and thus none can possibly fall within the scope of the work product doctrine. The subjects of these documents indicate, despite the self-serving assertion that they are "internal" or "draft," that they contain much of the actual 16

analyses done by Sandia of meteorology, population, or accident decontamination issues the State raised in its comments on the DSEIS.

It is possible that much of the information identified in the three Appendices is truly irrelevant or that the documents are drafts for which final documents are eventually produced.

Given the absence of any document listed as "final" on the list and where no document has been produced that is obviously the final version of a draft on the list, it is difficult to ascertain whether a final is listed as a "draft" in error. Since the Board is able to see all the documents, it can ascertain which documents are the ones the State is really seeking - i.e., the documents that Staff relied upon in the FSEIS, and the documents that contain the analyses and/or form the basis for the analyses relied upon in the FSEIS.

CONCLUSION Notwithstanding the limited amount of information Staff has made available regarding the reason forits privilege. designations, the State of New York has demonstrated that no privilege attaches to certain of Staff s withheld documents and that its expert requires access to the analyses that support the reasoning and conclusions contained in the FSEIS. The State respectfully requests the Board grant its Motion to Compel.

Respectfully submitted, Jane Dean i Jo Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York Albany, New York 12224 Albany, New York 12224 (212) 416-8459 (518)402-2251 janice.dean@ag.ny.gov john.sipos@ag.ny.gov Dated: May 16, 2011 17

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

......----------------------------- X In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO0.

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. May 16, 2011

x CERTIFICATE OF SERVICE I hereby certify that on May 16, 2011, copies of the State of New York Reply to NRC Staff's Answer to the State's Motion to Compel the Production of Documents, were served upon the following persons via U.S. Mail and e-mail-at the following addresses:

Lawrence G. McDade, Chair Kaye D. Lathrop Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 190 Cedar Lane E.

Two White Flint North Ridgway, CO 81432 11545 Rockville Pike Kaye. Lathrop@nrc.gov Rockville, MD*20852-2738 Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Richard E. Wardwell Mailstop 3 F23 Administrative Judge Two White Flint North Atomic Safety and Licensing Board Panel 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Mailstop 3 F23 Two White Flint North Josh Kirstein, Esq. Law Clerk 11545 Rockville Pike Atomic Safety and Licensing Board Panel Rockville, MD 20852-2738 U.S. Nuclear Regulatory Commission' Richard. Wardwell@nrc.gov Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh.Kirstein@nrc.gov I

Office of Commission Appellate Martin J. O'Neill, Esq.

Adjudication Morgan, Lewis & Bockius LLP U.S. Nuclear Regulatory Commission Suite 4000 Mailstop 16 G4 1000 Louisiana Street One White Flint North Houston, TX 77002 11555 Rockville Pike martin.o'neill@morganlewis.com Rockville, MD 20852-2738 ocaamail@nrc.gov Elise N. Zoli, Esq.

Goodwin Procter, LLP Office of the Secretary Exchange Place Attn: Rulemaking and Adjudications Staff 53 State Street U.S. Nuclear Regulatory Commission Boston, MA 02109 Mailstop 3 F23 ezoli@goodwinprocter.com Two White Flint North 11545 Rockville Pike William C. Dennis, Esq.

Rockville, MD 20852-2738 Assistant General Counsel hearingdocket@nrc.gov Entergy Nuclear Operations, Inc.

440-Hamilton Avenue Sherwin E. Turk, Esq. White Plains, NY 10601 David E. Roth, Esq. wdennis@entergy.com Andrea Z. Jones, Esq.

Beth N. Mizuno, Esq. Robert D. Snook, Esq.

Brian G. Harris, Esq. Assistant Attorney General Office of the General Counsel Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 15 D21 55 Elm Street.

One White Flint North P.O. Box 120 11555 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@ct.gov sherwin.turk@nrc .gov andrea.jones@nrc.gov Melissa-Jean Rotini, Esq.

david.roth@nrc.gov Assistant County Attorney beth.mizuno@nrc.gov Office of the Westchester County Attorney brian.harris@nrc.gov Michaelian Office Building 148 Martine Avenue, 6th Floor Kathryn M. Sutton, Esq. White Plains, NY 10601 Paul M. Bessette, Esq. MJR 1 @westchestergov.com Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Daniel E. O'Neill, Mayor Washington, DC 20004 James Seirmarco, M.S.

ksutton@morganlewis.com Village of Buchanan pbessette@morganlewis.com Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net 2

Daniel Riesel, Esq. Manna Jo Greene, Director Thomas F. Wood, Esq. Stephen Filler, Esq., Board Member Jessica Steinberg, Esq. Hudson River Sloop Clearwater, Inc.

Sive, Paget & Riesel, P.C. 724 Wolcott Avenue 460 Park Avenue Beacon, NY 12508 New York, NY 10022 Mannajo@clearwater.org driesel@sprlaw.com stephenfiller@gmail.com j steinberg@sprlaw.com Ross H. Gould Michael J. Delaney, Esq. Board Member Director Hudson River Sloop Clearwater, Inc.

Energy Regulatory Affairs 270 Route 308 NYC Department of Environmental Rhinebeck, NY 12572 Protection rgouldesq@gmail.com 59-17 Junction Boulevard Flushing, NY 1 373 Phillip Musegaas, Esq.

(718) 595-3982 Deborah Brancato, Esq.

mdelaney@dep.nyc.gov Riverkeeper, Inc.

20 Secor Road Ossining; NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org Adam J. Dobson Assistant Attorney General State of New York (518) 402-2251 Dated at Albany, New York this 16th day of May 2011 3

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