ML20072R744

Response to New York Pirg 830329 Motion for Order Requiring Production of Documents Re 830309 Emergency Planning Exercise.Exercise Evaluations Sought Should Be Regarded as Privileged.Certificate of Svc Encl

ML20072R744
Person / Time
Site:	Indian Point
Issue date:	04/01/1983
From:	Feinberg J NEW YORK, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8304060302
Download: ML20072R744 (10)

Text

{{#Wiki_filter:_ I-46I,50 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARf3 APR -4 All :21

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s- .; 4 , :'y Before Administrative Judges James P. Gleason, Chairman Dr. Oscar H. Paris Frederick J. Shon d In the Matter of )

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oc et os. CONSOLIDATED EDISON COMPANY ) q OF NEW YORK, INC. ) 59-286SP

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April 1, 1983 POWER AUTHORITY OF THE STATE )

'                        OF NEW YORK (Indian Point,           )

Unit No. 3) ) NEW YORK STATE'S RESPONSE TO NYPIRG's MOTION FOR PRODUCTION OF DOCUMENTS By motion dated March 29, 1983, the New York Public Interest Research Group (NYPIRG) has moved for an order requiring New York State,among other parties and participants,to produce documents connected with the March 9 exercise. These documents were preserved pursuant to a stipulation resolving NYPIRG's February 22 motion for an order requiring New York State and other parties and participants to preserve documents relating to the exercise. New York State will now show that: (1) the documents sought are privileged and (2) the Naclear Regulatory Commission did not resolve this claim of privilege in its MEMORANDUM served on August 20, 1982. f

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i I. NYPIRG SEEKS PRIVILEGED DOCUMENTS Tbs documents NYPIRG seeks from New York State are the individual evaluations

• performed by New York State employees for ,

the New York State Radiological Emergency Planning Group (NYSREPG). These persons observed the March 9 exercise on behalf of the State, assessed areas in which they'believe persons participating in the cxercise performed their functions properly and made recommendations a for changes in off-site radiological emergency practices and procedures. As such, the documents in which the evaluations are performed are of great importance to the State's exercise of its amargency planning functions and are shielded by the privilege 4 attaching to intra-governmental communications that are part'of a government's deliverative process. The intra-governmental " deliberative process" privilege protects the decision making process of governments by shielding from discovery intra-governmental documents" reflecting advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated." McClelland v. Andrus 606 F.2d 1278, 1287 (D.C. Cir. 1979) , Liuzzo v. United States 508 F. Supp. 923, 937 (E.D. Michigan 1981) , In Re Franklin National Bank Security Litigation 478 F.2d 577 @l.D. N.Y.

• These items are different from the FEMA team leader reports which the Board ordered released on March 31, 1983. Rather these documents are comparable to the individual FEMA evaluation forms that the Board did not order released on March 31, 1983.

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1979). The rationale behind the privilege is that the frank discussion necessary for proper governmental decision making might not be possible if documents containing intra-governmental opinions were made public. " Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by a decisionmaker o'n' the subject of the decision prior to the time the decision is made." National Labor Relations Board v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975). Pursuant to S20 (e) of the New York State Executive Law it is the responsibility of NYSREPG in its role as staff to the New York State Disaster Preparedness Commission to ensure that radiological emergency plans, organizational arrangements and response capability "shall at all times be the most effective that current circumstances and existing resources allow." In order to achieve that end, it is necessary that REPG receive candid evaluations on the actions of persons implementing the plan and necessary alterations. In order to ensure the candid exchange of opinions, it is necessary that the author of documents containing opinions be ensured that those opinions will be protected from hostile scrutiny. As Cnemissioners Roberts and Ahearne have recognized, the knowledge that exercise evaluations will be released may have a " chilling effect" on the author of an evaluation and lead to a sanitization of the l evaluation. Such sanitization of the evaluations will mean that l REPG will not be completely informed about the exercise. In fact, l I f

as Commissioner Roberts, joined by Commissioner Ahearne, noted in his concurrence-to the August 20, 1983 Memorandum (Additional Views of Commissioner Roberts, p. 3), discovery of notes might lead to a failure to record such notes. In either event, the purpose of the exercise -- to ensure that radiological planning will be tested, will i be undercut. It is essential that the State's' decision making process be protected and that the individual exercise evaluations requested not be released. II. THE COMMISSION HAS NOT DETERMINED THAT THE EVALUATIONS ARE NOT' PRIVILEGED In its MEMORANDUM served August 20, 1982, the Commission explained the reasons for its ORDER served March 3, 1982. That Order stayed an oral discovery ruling of the Atomic Safety and Licensing Board which allowed NYPIRG entry into licensee control-rooms and the emergency operations centers of State and local l l governments during the radiological emergency planning exercise of March 3, 1982. One of the reasons for staying this Order offered by the Commission is that "UCS/NYPRIG (sic) had access to extensive documentation generated by the NRC and FEMA staffs during the exercise and had ample legal tools at their disposal to secure the . information they wished, following the exercise ",(Memorandum served August 20, 1982, p. 3). That language does not mean that the Commission considered or even reached the privileged status of the New York State exercise evaluations.

That the Commission stated that documents were available does not mean that the Commission decided that individual evaluation forms were to be released. The documents referred to by the Commission could be FEMA and NRC staff reports on the exercise, not individual evaluations. The reference in the Commission's Memorandum (page 3) to " ample legal tools" is an indication that legal questions of privilege remain to be discussed. Indeed,~ ------- it is very difficult to see how the Commission could resolve the question of privilege without giving parties who might raise such claims, such as the State of New York, an opportunity to raise these claims Moreover, even if the commission did decide that the documentation resulting from the March 3, 1982 exercise should be made available it may not have decided that documentation from the March 9, 1983 exercise should similarly be made available. Commissioner Roberts stated in his concurring opinion that he did not believe that the practice of preserving draft reports of l individual. observers should be continued in large part because such evaluations may not be accurate standing alone (Additional views of Commissioner Roberts pp. 2-3). His view that "I do not believe that it is in the NRC's interest that Licensing Boards require the staff and FEMA to preserve and distribute handwritten notes written during the emergency exercise" was joined by Commissioner Ahearne (Additional Views of Commissioner Ahearne,

p. 3). That these two Commissioners out of three in the majority believe the result in the future would be different makes it likely that the full commission intended that the matter of whether

individual exercise evaluations should be released should be

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considered again by this Board. It is also important to note that if the Commission has rejected any claims of privilege it has probably done so only in relation to claims that could be raised by FEMA and Staff. It is those parti}es that the Commission noted were expected to make documents available. The Commission never' indicated that the State ! of New York was expecten to release such documents.* It is not surprising that the Commission would single out FEMA and the NRC staff as parties that might be expected to release documents. FEMA and the NRC staff have the duty of evaluating the exercise and 1 l reporting to the Commission. As such, the Commission might decide that these documents should be subjected to public scrutiny, l regardless of the " chilling effect" on the evaluation of the exercise. Moreover, it is more important for intervenors to obtain those documents and subject them to examinations since those documents will be the basis of the Commission's evaluation. On the other hand, New York State's documents resulting from the exercise will not be used by the NRC in the evaluation process. Thus, not only do the intervenors have a lesser interest in obtaining the REPG's documents, but the Commission will have lesser interest in revealing , them.

• Copies of some of the individual state evaluation forms were inadvertantly released after the March 3, 1982 exercise. Attempts to enter these documents into the record have been rejected on two occasions (January 13, 1983 and March 23, 1983). The State has not lost its privilege as a result of this inadvertant release.

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CONCLUSION The Board should protect the exercise of the State's decision making function in performing its emergency planning role. The exercise evaluations that the intervenors seek should be regarded as privileged. Moreover, it should be recognized that the NRC never reached the question of whether or not these documents were privileged in its Memorandum served on August 20, 1982. Respectfully submitted, O .hJ9 JONATHAN D. FEINBERG - ' Staff Counsel APPEARING FOR STANLEY KLIMBERG General Counsel New York State Energy Office Dated: Albany, New York April 1, 1983 cc: Service List

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  .                                NUCLEAR REGULATORY COMMISSION
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                       .                                           *',.,C'                            1 3EFORE THE ATCMIC SAFETY MD LICENSING 3OAPD
                                                             '83 APR -4 A11 :21 In the Matter of.                         )

1 ._ . CONSOLIDATED EDISON COMPANY .) [l- Docke.tJNos. 50-247-SP OF NEW YORK (Indian Point, Unit 2 ) MCH 50-286-SP

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POWER AUTHORITY OF TEE STATE OF 1 NEW YORK (Indian Point, Unit 3) ) , CERTIFICATE OF SERVICE I hereby certify that on April 1, 1983, I mailed a copy of New York State's Response to NYPIRG's Motion for Production of Documents by first class mail except that those persons whose names are marked with an

• received service by express mail on April 1, 1983.
• James P. Gleason, Esq. -

Paul F. Cola:6ulli,::sq. Administrative Gudge _ Joseph J. Levin, Jr., Esq.

513 Gilmore Dr.ive .' Pamela S. Horowitz, Esc. ~

l, Silver Springs, Maryland 20901 Charles Morgan , Jr. , Esq. Morgan Associates, Charte: 1899 L Street, N.W. Dr. Oscar E. Paris Washington, D.C. 20036 Administrative Judge - Atomic Safety and Licensing 3 card Charles M. Pratt, Esq. U.S. Nuclear Regulatory Commission Thomas R. Frey , Esq. Washington, D.C. 20555 Power Authority of the St of New York Mr. Frede' rick J. Shen 10 Columbus Circle Administrative - Judge New York , NY 10019

      .         Atcmic Saf ety and Licensing Board * *                                           ' -

U.S. Nuclear Regulatory Ccmmission Ellyn R. Weiss, Esq. Washington , D.C. 20555 William S . Jordan , III, E Harmon & Weiss Brent L. 3randenburg, Esq. 1725 I Street, N.W., Suit Assistant General Counsel Washington D.C. 20006 Censelidated Edison Company of New York, Inc.

• Amanda Potterfield, Esq.-

4 Irving Place Indian Point Project New York, NY 10003 New York Public Interest Research Group Mayor Gecrge V. 3egany ,

9. .'t:r ay Streer NeO York, NY 100 07 .,

Village of Buchanan 235 Tate Avenue E N 10511

2-John bilrov, Westchester Coordinator Marc L. Parris, Esc Indian Point Project " Eric Thorsen, Esc.'. New York ?ublic Inter'est, County Attorney, " County of Researen Group Rockland 240 Central Avenue 11 New Hampstead Road White Plains, NY 10606 New City, NY 109 56 Jeffrey M. Blum, Esq. Geoffrey Cobb Ryan New York University Law School Conservation Cemnittee 423 Vanderbilt Hall Chairman , Director 40 Washington Square South New York City Audubon Socie New York, NY 10012 71 West 23rd Street, Suite New York, NY IC010 Charles J. Maikish, Esq. Litigation Division Greater New York Council.on The Port Authority of Energy New York and New Jersey- c/o Dean R. Corren , Directc One World Trade Cent ~er New York University New York, NY 10048 26 Stuyvesant Street New York, NY 10003 Ezra I. 3ialik, Esq. Steve Leipsiz, Esq. Honorable Richard L. Brodsk Invironmental Protection Bureau Msuber of the Cotrty Iagislattfre New York State Attorney Westchester Ccunty General's Office , Coimty Office . Building

                                                                                                                             , - _. _ White Plains,.$Y.'10601Tf-~

Two World Trade Center - - - - - - - New York, NY 10047 - Pat Posner, Spokesperson Andrew T.'. O'Rourke . Parents Concerned About Westchester County Executive Indian Point Westchester County P.O. Box 125 148 Mar. tine Avenue Croton-on-Hudscin, EY 10520 White Plains, NY 10601

• Charles A. Sche:iner ,

Andrew S. Rof f e , Esq. Co-Chairperson New York State Assembly Westchester People's Actio Coalition, Inc. Albany, NY 12248 , P.O. 3cx 488 Renee Swartz , ' Esq. White Plain s , 1:Y 10 60 2 Betein, Hays, Sklar & Herzberg

• Attorneys for Metropolitan ,

Lorna Salzman Transcoration Authority Mid-Atlantic Representativ. Priends of the Earth, Inc. 200 Park Avenue 208 West 13th Street New York, NY 10166 New York, NY 10011 Henorable Ruth Messinger Craig Kaplan, Esq. Member of the Council of the National Emergency Civil Cicv of New York

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Liberties Ccmmittee District #4 175 Fifth Avenue - Suite 71 l City Hall New- York, NY 10010 New York, NY 10007 .

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300.New Hen = stead Road New City, NS 1095c Janice Moore, Esq. Counsel for NRC Staff Office of the Exei:utive Davif E. Pikus, Isq. ,egal s Director

           -     Richard f. Czaja, Isq.

U.S. Nuclear Regulaterv.

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Acc=ic Safety and Licensing Board Stewart M. Glass ' U.S. Nuclear Regulate:f Cc=sission Regional Cou1sel -

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yederal Emergency Management Agency Atc=ic Safetv and Licensing Aepeal 26 Federal P.Laza-Room 1349 New York, NY 10278

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l U.S. Nuclear Regula ::y Cc==ission ., Mayor 1. Webster Pierce W a s a. .ington, D.C. 20s:s- Village of Buchanan

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                . Office of the Secretary U.S. Nuclear Regulatory Cc=aissien David Duboff Washingten, D.C. 20555                                                                               Westchester teoples' Action Coalition Stechen Sh'elly                                                                                      255 Grove Street White Plains,-NY 10601 Union of Concerned Scientists                                                             .

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• 1346 Connecticut Avenue, N.W. ,

Washington, D.C. 20036

• Vavid Lewis, Esq. .

Atomic Safety and Licensing 3 card Panel U.S. Nuclear Regulatcry Ceraission ...

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