ML20039E287

Responds to 811023 Telcon Protesting Production of Documents at Governors Ofc & Alleging Removal of Documents Under Privilege Claim.Disagrees W/Characterization of Events.W/ Certificate of Svc.Related Correspondence

ML20039E287
Person / Time
Site:	Diablo Canyon
Issue date:	10/23/1981
From:	Lanpher L CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS
To:	Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
NUDOCS 8201070111
Download: ML20039E287 (5)

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William J. Olmstead, Esq.

Office of Executive Legal Director BETH 042 U.S. Nuclear Regulatory Cormission Washington, D.C. 20555

Dear Bill:

This letter responds to your phone call 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 claim. You then stated that you had already spoken with the Board to arrange a conference call for nexr 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. Enen 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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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, 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 Staff counsel in Sacramento was informed by the

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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 invited 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,1is 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. Certain1) the Board's intervention should be reserved for important matters.

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Lawrence Cde Lanpher LCL/dk Enclosure

r a a INDEX OF DOCUMENTS WITHHELD FROM PRODUCTION

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

2. Nctes 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 Greerberg -

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 onl- 2 of remote relevance in the full power proceeding where different plans are at issue.

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

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In the Matter of )

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

) 50-323 0.L. i (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:

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Mr. Thomas Moore, Chairman Atcmic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission

, Washington, D. C._ 20555 l

Dr. W. Ree/i Johnson Atcmic Safu cy and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. John H. Buck j

Atcmic Safety and Licensing Appeal Board r 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

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 R. Kline Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 William J. Olmstead, Esq.

Edwa rd G . Ketchen, Esq.

Lucinda Low Swart =, 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: Do ck etina and Service Section Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo,' CA 93401 Janice E. Kerr, Esq.

Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

4623 More Mesa Drive Santa Barbara, CA 93105 Mr. Cordon Silvor Mrs. Sandra A. Silvor 1760 Alisal Street San Luis Obispo, CA ,93401 Joel R. Reynolds, Esq.

Jchn Phillips, Esq.

Center for Law in the Public Interest 10951 West Pico Sculevard Third Floor Los Angeles, CA 90064 3ruce Ncrton, Esq.

Norton, Burke, Serry & Junck

-3216 North Third Street - Suite 300-Phcenix, Arizona 85012 l

4 Philip A. Crane, Jr., Esq.

Richard F . Locke, Esq.

F. Rennld Laupheimer, Esq.

Pacific Gas and Elect:4.c Company 1050 17th Street, N.W.

Suite 1180 Washincton, D. C. 20036 David S. Fleischaker, Esq.

P.O. Ecx 1178 oklahcma City, Oklahcma 73101 Arthur C. Gehr,'Esq.

Snell & Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 l Mr. Richard 3. Hubbard MHS Technical Associates 1723 Hamilton Avenue - Suite K San Jose, CA 95125 Mr. Carl Neiberger Telegram Tribune P. O. Box 112 l San Luis Obispo, CA 93402 Byron S. Georgicu, Esq.

Legal Affairs Secretary Governor's Office State Capitcl Sacramento, CA 95814 f "l ,./

f)&^ 'fC /? . /n m Herbert H.' Brown KIRKPATRICK, LOCKHART,

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December 4, 1981 HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

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Judge John F. Wolf, Chairman 7.tomic Safety and Licensing Board e uo D Judge Glenn O. Bright /

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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 "ile'a response to the 2

Motion in accordance with the filing deadline prescribed in Section 2. 730 (c) .

The Governor's response to PG&E's Motion will demonstrate

! conclusively that the materials requested by PG&E ire absolutely exempt from production under the Attorney-Client privilege.

Such materials were prepared for counsel by agencies of the <

1 State which is a party to this proceeding at the explicit request 4 of the Governor's counsel. Counsel's request was made to the

, addressees at a meeting in the Governor's San Francisco office l on October.5,.1981 which was held for the specific purpose of formulating trial positions with respect to the pending pro-I ceeding. The materials were thus communications between attor-ney and client which are squarely within the Attorney-Client crivilege.

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Krarrarnicx, LocxnAnT, HILL, Cuarsropian & Pluttrrs 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 Gorernor'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 funcrion 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 cnalyses 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 tht. 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.

1. 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

"Ric '. s Spta kf' Califernia M e m.o r a n d u m To ROGER SHERBURNE i

HERB BRCNN Date : OCTOBER 6, 1981

DOUG JOHNSON RICHARD HUBBARD

, JIM GATES GEORGE YOUNG JACK KEARNS PHILLIP GREENBERG ANN FLOOK

Subject:

DIABLO CANYON KENT KNIGHT EVACUATION -

10-5-81 MEETI'IG 1

From : Governor's Office -

L. WADE gosg 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 Geolocv DM&G 'ill 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 repor.t 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 plac'e. CalTrans will also

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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.

n: .n Memos Diablo Canyon Evacuation --10-5-81 Meeting October 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.

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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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