ML20038B944

Advises That Util 811202 Motion to Compel Production of Documents & for Expedited Decision Lacks Merit & There Is No Need or Justification for Expedited ASLB Action.Governor Brown Will Respond by Filing Deadline.W/Certificate of Svc

ML20038B944
Person / Time
Site:	Diablo Canyon
Issue date:	12/04/1981
From:	Brown H CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS
To:	Bright G, Kline J, Wolf J Atomic Safety and Licensing Board Panel
References
NUDOCS 8112090341
Download: ML20038B944 (10)

Text

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TELEPHONE 969 , 7 oO S IN FI2TsatTBoE CAllBt R1FMI ' EIREFAIRIG.IDCREAST,JoMNE N & EUTCElsoY r=1.mx woo. nrra er December 4, 1981 isoa or.rvan .Crx.D no wCITER S DIEECF DIAL NC3tBER FITTWBraGM. PEN 3sTLVAPTA 368ue (4as) ass-esco 452-7005 Judge John F. Wolf, Chairman Atoinic Safety and Licensing Board S h '.

i(Nh 9M Judge Glenn O. Bright ir;'i h. M

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DEO3 c JJ Judge Jerry R. Kline o 5 T$M ;ps" {

Atomic Safety and Licensing Board Panel 9}

United States Nuclear Regulatory Commission //

East-West Towers 4350 East-West Highway Bethesda, Maryland 20014

Dear Judges Wolf,

Bright and Kline:

We are in receipt of " PACIFIC GAS AND ELECTRIC COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR EXPEDITED DECISION," dated December 2, 1981 (" Motion"). This is to ad-vise the Board that (1) PG&E's Motion lacks merit; (2) there is no need or justification for expedited Board action on the Motion; and (3) Governor Brown will file a response to the Motion in accordance with the filing deadline pre' scribed in Section 2.730 (c) .

The Governor's response to PG&E's Motion will demonstrate conclusively that the materials requested by PG&E are absolutely exempt from production under the Attorney-Client privilege.

Such materials were prepared for counsel by agencies of the State which is a party to this proceeding at the explicit request of the Governor's counsel. Counsel's request was made to the addressees at a meeting in the Governor's San Francisco office on October 5, 1981 which was held for the specific purpose of formulating trial positions with respect to the pending pro-ceeding. The materials were thus communications between attor-ney and client which are squarely within the Attorney-Client privilege. ~~f 9 50 s

811209034 811204' PDR O ADOCK 03000275 PDR

Kruxtwratex, LOCKHART, HILL, Cuntsroenza & PHILLIPS 2.

Mr. Rose's involvement in this matter was simply as an intermediary providing assistance to the Governor's counsel and acting at the request of the Governor's counsel. Indeed, Mr. Rose's October 6 memorandum states clearly that it was in-tended to summarize and confirm the discussion held by the Governor's counsel with the addresees listed in the memorandum.

Obviously, Mr. Rose's assistance was necessary in order to facilitate communications between the several State agencies and counsel who are 2,500 miles apart. (Please note that the undersigned Governor's counsel is one of the addressees listed in Mr. Rose's memorandum.) Mr. Rose's involvement will be con-firmed in an affidavit by Mr. Rose that will accompany the Governor's response to PG&E's Motion. The last paragraph of Mr. Rose's memorandum, copy attached, clearly demonstrates Mr.

Rose's function as a conduit for communications to and from counsel.

Furthermore, the materials requested by PG&E are also pro-tected by the Work-Product doctrine, because they are informa-tion collected by the Governor's counsel that contain analyses of matters involved in the pending full power litigation.

Finally, PG&E has made false and,.indeed, intemperate allegations of " suppression" of documents related to Mr. Rose's October 6 memorandum and has asked for the Governor "to identify and list all documents which he has refused to produce for any reason." (Motion, p. 4) Such a list was prepared, and a copy is enclosed herewith as the attachment to Mr. Lanpher's letter to Mr. Olmstead dated October 23, 1981. (Please note that Item 1 is Mr. Rose's October 6 memorandum.)

Very truly yours, Herbert H. Brown Attorney for Governor Brown Encls.

(

l. L. Wade Rose's Memorandum of Oct. 6, 1981

2. L. C. Lanpher's letter to Mr. W. J. Olmstead of Oct. 23, 1981, with attachment

, St;tet.gf Crlifornia Memorandum To  : ROGER SHERBURNE , HERB BRG7N Date : OCTOBER 6, 1981 DOUG JOHNSON RICHARD hub 3ARD JIM GATES GEORGE YOUNG JACK KEARNS PHILLIP GREENBERG ANN FLOOK Subled : DIABLO CANYON KENT KNIGHT EVACUATION -

10-5-81 MEETING From . Governor's Office -

L. WADE ROSE The following is a statement of the tasks agreed upon at the October 5, 1981 meeting in the Governor's Office, San Francisco.

Division of Mines and Geology DM&G will describe ground shaking in areas continguous to the Diablo Canyon power plant due to a 7.5 earthquake on the Hosgri fault. Ground motion will be characterized by acceleration field estimates and duration estimates.

DM&G's analysis will then be compared with the TERA report methods, data, and results, and the adequacy of the report will be evaluated. Special attention will be paid to the apparent dis-crepancy in the TERA document where the terms " median" and "mean" are used to describe the same set of data. DM&G will also perform a standard deviation calculation on their data.

A second set of tasks for DM&G will be to look at the poten-tial for earthquakes from other faults affecting the emergency planning area. This project will be undertaken as soon as the DM&G analysis of the TERA report is complete and time can be arranged.

CalTrans Basing their studies on the TERA report and DM&G's analysis, CalTrans will characterize the effects of a 7.5 earthquake on the Hosgri fault on surface transportation routes. Assuming that Class 2 and 3 bridges in the TERA report will fail and that those areas which were identified as being susceptible to liquefaction and slides will be impaired, CalTrans will estimate the time necessary to repair the roads (including clearing slides and fixing bridges, and considering the availability of repair equip-ment) so that evacuation can take place. CalTrans will also include county and city bridges and roads in their study. In addition, a study will be made to determine whether TERA's esti-mates on liquefaction are too conservative.

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Mamo: Diablo Canyon Evacuation 5-81 Meeting 7ctober 6, 1981 Page 2 OES/CHP Working together, OES and the CHP will evaluate the real world situation of evacuation due to the effects of an earthquake described by DM&G and the conditions of the surface transporta-tion routes described by CalTrans. Special attention will be paid to a determination of the State and private equipment avail-able for use in repairing evacuation routes, constraints on getting equipment and people into the area who will assist in the evacuation, the condition of the EOF after a 7.5 earthquake, and the accessibility to key communications areas after the quake.

George Young will be working with both DM&G and CalTrans during their studies.

If anyone needs to have questions answered about the TERA report, they will communicate them by Thursday, October 8, to Wade Rose who will in turn communicate them to the Governor's attorneys in D.C. .

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202/452-7011 (BY MESSENGER)

William J. Olmstead, Esq.

Office of Executive Legal Director BETH 042 U.S. Nuclear Regtilatory Commission Washington, D.C. 20555 l

Dear Bill:

, This letter responds to your phone cal} to me earlier today.

In that call, you protested our production of documents at the Governor's office in Sacramento, California, alleging that we had removed " hoards" or " scores" of documents under claim of privi-ledge. You asserted that our actions had led the government to send persons on an unnecessary trip to California and that we had violated the regulations by failing to inform the Staff in advance of the privilege clai..'. You then stated that you had already spoken with the Board to arrange a conference call for next week.

I must disagree with your characterization of events and the actions you have taken. Indeed, in my opinion, you have created an " issue" out of matters which, under normal circumstances, are dealt with informally and routinely among counsel. This is most unfortunate.

The facts are as follows:

1. When the Governor gathered documents for production, a screening was made for privileged materials. None was identi-fied.

2. On October 20, 1981, the day before the Staff came to review documents, we discovered that documents from certain Staff files in the Governor's office inadvertently had not been included in materials being produced. We then examined those files for relevant materials.

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/ HILL. CH RISTO PH E R . ABS D PH I LLI PS. P. C. - _ _ _

William J._Olmstead, Esq.

October 23, 1981 Page 2

3. Not surprisingly, certain privileged Diablo Canyon documents were identified, particularly letters from the Governor's lawyers to persons on the Governor's staff. ThereIndeed,

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were not there scores of documents as you unknowingly alleged.

was a total of 11 documents. An index of such privileged docu-ments is now available and is attached hereto.

4. NRC Staf f ' counsel in Sacramento was informed by the Governor's office on October 20 to call my colleague, Herbert H.

Brown, if counsel had any questions concerning the documents being produced. Staff counsel did not call, nor did any other Staff member relay any concern whatsoever to Mr. Brown. One might think that a wasted Staff trip, as you put it, would have at least evoked a telephone-call -- particularly since such a call was.

explicitly invitea for the purpose of addressing any problem or concern that might arise.

5. In fact, the Staff received all documents to which it was entitled. Thousands of'pages of documents were produced.

The few documents withheld -- 11 in number -- were and are properly privileged.

The foregoing facts could easily have been ascertained by your Staff colleague on October 20, or by yourself prior to requesting.

the Board's extraordinary intervention. It, frankly, is incompre-hensible to me that you did not simply call us to determine the facts before leaping to such extremes. However, since you now are apprised of these-facts, I request that'you take the steps necessary to inform the Board that its intervention is not required. Certainly the Board's intervention should be reserved for important matters.

Very truly. yours, L

Y

• Lawrence Cd'e Lanpher LCL/dk Enclosure

a .

. INDEX OF DOCUMENTS WZTHHELD FROM PRODUCTION

1. Memorandun October 6, 1981, from Wade Rose to possible witnesses, summarizing trial preparation meeting of October 5, 1981 among witnesses and counsel re possible testimony in reopened proceeding and analysis of Tera. Report for use by counsel in full power proceeding.

2. Notes from file of Phil Greenberg re same meeting as in No. 1.

3. Notes from George Young re same meeting as in No. 1.

4. Notes from Ann Flook (OES) regarding same meeting as No. 1.

5. Letter to Herb Brown / Larry Lanpher from Phil Greenberg -

dated April 21, 1981.

6. Letter to Wade Rose from Larry Lanpher dated June 12, 1981.

7. Notes from file of Phil Greenberg_regarding June 12, 1981 letter.

8. Letter to Wade Rose from Larry Lanpher dated June 8, 1981.

9. Letter to Richard Felty from Larry Lanpher dated July 15, 1981.

10. Letter to Richard Minor from Larry Lanpher dated April 3, 1981.

11. Letter to Wade Rose from Larry Lanpher dated May 29, 1981.

NOTE: Items 5-11 all relate to emergency preparedness in the low power proceeding. While privileged, they also are at best only of remote relevance in the full power proceeding where different plans are at issue.

0 . .- ,

e O 00LKETED UNITED STATES OF AMERICA WiNRC NUCLEAR REGULATORY COMMISSION .

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '81 DEC -7 P1 :13

- :E E SECRETARY n lilNG & SERVICE

) BRANCH In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the enclosed letter from the undersigned to Judges John F. Wolf, Glenn O. Bright and Jerry R.

Kline have been served to the following on December 4, 1981 by U.S. mail, first class, except as otherwise noted:

Mr. Thomas Moore, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555

. s.

John F. Wolf, Esq., Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Glenn O. Bright Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Jerry d. Kline Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 William J. Olmstead, Esq.

Edward G. Ketchen, Esq.

Lucinda Low Swartz, Esq.

George E. Johnson, Esq.

Office of Executive Legal Director BETH 042 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ATTENTION: Docketing and Service Section Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, CA 93401 Janice E. Kerr, Esq.

Public Utilities Commissio::

5246 State Building 350 McAllister Street

, San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 i

Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

I 4623 More Mesa Drive Santa Barbara, CA 93105 L

. l Mr. Gordon Silvar  ;

Mrs. Sandra A. Silver  !

1760 Alisal Street San Luis Obispo, CA 93401 ,

Jo el R . Reynolds , Esq.

John Phillips, Esq.

Center for Law in the Public Interest 10951 West Pico Boulevard Third Floor Los Angeles, CA 90064 Bruce Norton, Esq.

Norton, Burke, Berry & Junck 3216 North Third Street - Suite 300 Phoenix, Arizona 85012 Philip A. Crane, Jr., Esq.

Richard F . Locke, Esq.

F. Ronald Laupheimer, Esq.

Pacific Gas and Electric Company 1050 17th Street, N.W. ,

suite 1180 Washington, D. C. 20036 David S. Fleischaker, Esq.

P.O. Box 1178 Oklahoma City, Oklahoma 73101 Arthur C. Gehr, Esq.

Snell & Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K San Jose, CA 95125 Mr. Carl Neiberger Telegram Tribune P. O. Box 112 San Luis Obispo, CA 93402 Byron S. Georgiou, Esq.

Legal Af fairs Secretary Governor's Office State Capitol Sacramento, CA 95814 3

Herbert H.' Brown IRKTATRICK, LOCKHART, December 4, 1981 HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

• Hand-delivered Washington, D. C. 20036