ML20076K699

Suppl to 830907 Motion to Compel FEMA Employee Depositions. Addl Documents Verify Central Roles of Employees in FEMA Review of Util Plan.Certificate of Svc Encl

ML20076K699
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/12/1983
From:	Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL-3, NUDOCS 8309150237
Download: ML20076K699 (13)

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• September 12, 1983

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00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '85 SEP 14 A10 56 Before the Atomic Safety and Licensing Board __0, o,.2

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

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SUPPLEMENT TO SUFFOLK COUNTY MOTION TO COMPEL DISCOVERY t

On September 7, 1983, Suffolk County filed a Motion to Compel Discovery relating to the refusal by FEMA to produce Richard Krimm, Jeffrey Bragg and Gary Johnson to be deposed by Suffolk County. On Friday, September 9, 1983, the County received additional information from FEMA that is pertinent to the previously filed Motion and that made it necessary to file this supplemental document.

A. FEMA's Refusal to Produce Messrs.

Johnson, Krimm and Bragg On September 9, 1983, the County received FEMA's Response to the Suffolk County Request for Production of Documents dated August 12, 1983 (hereinafter, " FEMA Response"). The

FEMA Response identified several memoranda and other communica-tions, relating to the FEMA review of the LILCO Transition

! Plan, in which Messrs. J0hnson, Krimm and Bragg were involved,

, 8309150237 830912 PDR ADOCK 05000322 Ob

and which were not known to the County when the September 7 Motion to Compel was filed. A copy of the FEMA Response is Attachment 1 hereto. The existence of the following items, identified in Attachment 1, further emphasizes the lack of basis for FEMA's refusal to produce Messrs. Johnson, Krimm and Bragg to be deposed, and the legitimacy of the County's expressed need to depose those gentlemen:

A. Documents reflecting communications between Argonne National Laboratory (Argonne) and FEMA concerning the LILCO Plan:

(1) June 13, 1983 Tanzman to Johnson - Draft Legal Memorandum Legal Issues presented by Shoreham REP Plans (2) June 13, 1983 Wolsko to Johnson - Draft review of Fi/e alternative offsite emer-gency response plans for Shoreham (3) June 14, 1983 Becherman to Johnson -

List of deficiencies / Questions (4) June 16, 1983 Tanzman to Johnson -

Description of Review Process I

(5) June 16, 1983 Tanzman to Johnson -

! revised review of LILCO Transition l module of Shoreham Offsite Radiological Emergency Response Plan (June 17, 1983)

(6) June 22, 1983 Becherman to Johnson -

revised review of LILCO Transition module of Shoreham Offsite Radiological Emergency Response Plan (June 22, 1983) i (7) July 1, 1983 - Surles to Sharrocks -

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element by element review of 4 REP modular plans (cover letter only) l B. Documents relied on by Argonne in conducting its review of the LILCO Plan:

(7) June 1, 1983 Memorandum for Edward Jordan to Richard W. Krimm i

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(8) Memo of 6/13/83 - to Wingo/Hepler from Gary Johnson C. Documents reflecting communications between LILCO and FEMA concerning the LILCO Transition Plan:

2. FEMA representatives met with LILCO representatives on June 16, 1983, sub-sequent to FEMA's meeting with Suffolk County. An attendance list is attached.

(See Attachment 2 hereto. Attendees included Messrs. Krimm and Johnson.)

D. Documents concerning drills or exercises of an offsite emergency plan for Shoreham:

(1) August 29, 1983 Bragg to Dircks - Response to letter of July 22, 1983 from Dircks.

E. Documents concerning any review, by or on be-half of FEMA, [of] Revision I of the LILCO Transition Plan:

(1) August 9,19 83 - Johnson to Wingo -

LILCO Revisions to Plan as submitted through ASLB.

F. Documents analyzing, reviewing or concerning l the authority of LILCO, or any private utility

! or corporation to implement all or part of the LILCO Transition Plan or any offsite emergency plan:

l (1) June 13, 1983 - Tanzman to Johnson (Legal l Issues presented by Shoreham REP Plans)

The identified documents, most of which have not been provided to the County (see part B below) clearly verify the l . central roles played by Messrs. Johnson, Krimm and Bragg in the FEMA review of the LILCO Plan, as stated in the County's

September 7, 1983 Motion. The County submits that the FEMA response constitutes additional basis for the granting of the County's Motion to Compel the production o'f those gentlemen to be deposed by the County.

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l B. FEMA's Refusal to Produce Identified Documents i

As can be seen from a review of Response 1 in Attachment 1, FEMA has refused to produce all but one of the seven identified documents that reflect communications between Argonne National Laboratory (Argonne) and FEMA i~lating to the LILCO Transition

Plan. / The only basis for such refusal is the following statement

, " FEMA asserts that the other above captioned items are priviledged (sic]."

In its response, FEMA does not identify either the privilege

being asserted, or the basis for such assertion. The documents being withheld by FEMA cre communications from Argonne represen-tatives to Messrs. Johnson and Sharrocks (both. FEMA representa-I tives) relating to the LILCO Transition Plan. Clearly, they are relevant. Moreover, four of them are communications by Mr.

Tanzman, a witness designated by FEMA to testify in this pro-ceeding (nos. 1, 3, 5 and 7); the other two (nos. 2 and 6) involve Mr. Johnson who has obviously played a central role

! in the FEMA review, and whom the County wishes to depose (see section A above). The document descriptions provided by FEMA suggest no privilege that could possibly protect these communi-cations from a legitimate discovery request. In light of FEMA's

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Only document number 4 -- a June 16, 1983 memorandum from Tanzman to Johnson containing a description of the review process -- was provided to the County.

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-S-failure to provide any legally cognizable reason for its refusal to produce these documents, the County submits that FEMA should be compelled to produce them.

In addition, the FEMA Response fails to provide the docu-ments requested in the County's Requests numbered 3 and 4.

See Attachment 1. Those Requests are:

3. Provide copies of all reports, notes, analyses, memoranda, and all other such documents, whether in draft or final form, produced or relied upon by FEMA personnel or contractors of FEMA and concerning the LILCO Transition Plan, FEMA's review of the Plan, or Argonne's review of the Plan.

4. Provide copies of all documents concerning the LILCO Transition Plan produced by any consultants or contractors of FEMA other than Argonne.

FEMA's response to Request 3 was the statement: "not presently available." There is no response to Request 4. The County submits that FEMA should be compelled to respond to these two discovery requests.

C. Request for Expeditious Board Ruling The County's deposition of Mr. Tanzman -- the Argonne i representative designated by FEMA to be a witness in this procee ding -- is taking place today, September 12, 1983. The depositions of the two FEMA witnesses -- Messrs. Kowieski and Sharrocks -- are scheduled for tomorrow, September 13, 1983.

l Upon receipt of the FEMA response on Friday, September 9, 1983, we attempted to reach counsel for FEMA to discuss this matter,

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but he was not in. A message was left requesting that he bring the withheld documents with him to Mr. Tanzman's deposition in

the event it became necessary to seek a Board ruling on pro-duction. Counsel for FEMA and for LILCO, who are in our offices ,

today for Mr. Tanzman's deposition, are being provided with a i

copy of this Supplement this morning.

. Respectfully submitted, 5

David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway

! Hauppauge, New York 11788

./ i Herbdrt Lawrende Coe Lanpher H. Brown [

Karla J. Letsche KIRKPATRICK, LOCKHART, HILL,  ;

e- CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

Suite 800 Washington, D.C. 20036 ,

l Dated: September 12, 1983 Attorneys for suffolk County

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Attachment 1

, Federal Emergency Management Agency f Region II 26 Federal Plaza 'New York, New York 10278 8 SEP 1983 Karla Letsche, Esq.

Kirkpatrick, Lockhart, Hill Christopher & Phillips Sch Floor 1900 M. Street, N.W.

Washington, D.C. 20036

Dear Mr. Letsche:

Enclosed please find FEMA's response to your document request.

If you have any questions, please feel free to contact me on (212) 264-8980.

Very truly yours, l

(/)ftbMmQ \

Stewart M. Glass Regional Counsel l

Ens, i

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Page PART II - m%

1. Provide copies of all correspondence or docunentsIreflecting comunications between representatives of the Argonne National Laboratory ("Argonne") and j FEt% regarding the LIILO Transition Plan.

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Response 1.

A review of the FDR and Argonne files produced the following docments reflect-

! ing comunications between Argonne and Fa%.- ' ,

(1) June 13, 1983 Tanzman to Johnson - Draft legal M a orand a Legal Issues presented by Shorehm REP Plans.

(2) June 13,1983 Wolsko to Johnson - Draft review of Five alternat2.ve offsite emergency response' plans for'Shoreham (3) June 14,1983 Becherman to Johnson - List of deficiencies / Questions (4) June 16,1983 Tanzman to Johnson - Descripcion of Review Process

. (5) June 16,1983 Tanzman to Johnson -. revised review of LIILO Transition module of Shoreham Offsite Radiological Emergency Response Plan.

(June 17,1983).

(6) June 22, 1983 Becherman to Johnson - revised review of LIIDO l

Transition module of Shoreham Offsite Radiological Dnergency Response Plan (June 22,1983). ,

(7) July 1,1983 - Surles to Sharrocks - elment by elment review of 4 l

REP modular plans (cover letter only)

Attached please find item #4.

FDR asserts that the other above captioned items are priviledged. m% is presently reviewing these it es to determine if additional items will be made available under the informal discovey process.

2. Provide copies of all reports, notes, analyses, m moranda, and all other such docunents, diether in draft or final form, prodm:ed or relied upon by i any Argonne personnel or subcontractors of Argonne and concerning the LILCO Transition Plan or the review thereof Argonne or its subcontractors.

Response 2.

l Argonne relied on the following documents in conducting its review of the LILOO/ Transition Plan.

(1) NUREG 0654/mR REP 1-Rev.1 (2) L1100 Transition Plan and LIILO's Fhnorands of Service of Suppleental Bnergency Planning Information (3) 44 CFR 350 (4) 10 CFR 50 (5) NRC/ m R Memorandum of Understanding (6) AAA Map of New York City and vicinity including Iong Island (7) June 1,1983 Memorandum for Edward Jordan to Richard W. Krim (8) Meno of 6/13/83 - to Wingo/Hepler from Gary Johnson

l Page Itens # 1 through 5 are already in the possession of all parties and are public documents readily available.

Response 3. ,

Not presently available.

4. Provide copies of all documents concerning the LILCO Transition Plan pro-duced by any consultants or contractors of FB% other than Argonne.

Resnonse 4.

5. Provide copies of all docunents concerning the preparation, analysis on review of the LIIDO Transition Plan by FBR or Argonne's or contractors or subcontractors to either of the above, including, but not limited to, final versions and all drafts of docunents prepared by Thomas Urbanik or anyone associate with 'Ihcznas Urbanik.

Response 5.

Neither, Thomas Urbanik or anyone associated with Mr. Urbanik was involved in FB R's review of the LILOO Transition Plan. The primary docunent used was NUREG-0654 E%-REP-1, Revision 1.

6. Provide resunes or statements of professional qualifications for the following individuals:

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(a) Roger B. Kowieski s (b) Frederick Sharrocks Argonne National Laboratory (a) Ederd Tananan (b) Chris Saricks (c) Kenneth Lerner (d) Physis Beckerman (e) James Opelka Response 6.

The professional Qualification + of the above named individuals is attached.

7. Provide copies of all prior testimony, concerning energency planning, prcvided in any administrative, legislative or judicial forum (including deposition testimony) by any of the persons listed in question 6 above.

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Page Response 7.

Fred Sharrocks and Edward Tanzman have not testified on any matter concerning the above subject areas. Roger Kowieski was a witness before the ASLB in Indian Point. 'Ihe transcripts of his testimony as well as the pre-filed testimony in that hearing is attached. ,

8. Provide copies of all correspondence or documents reflecting comunications between LIILO and FEtR concerning the LIII0 Transition Plan.

Response 8.

The attached correspondence or documents reflect censunications between LIILO and m% concerning the LIILO Transition Plan.

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/ 1. LIILO furnished copies of the Transition Plan

((and the four other plans) to FDR in early June 1983.

2. ER representatives met with LILOO representatives on June 16, 1983, subsequent to FER's meeting with Suffolk County. An attendance list is attached. No minutes of this meeting were developed.

3. m % received a copy of " Revision I" to the Transition Plan that was furnished !!r. Denton of the NRC. A copy of the July 28, 1983, letter is attached.

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9. Provide copies of all docunents concerning drills or exercises of an offsite energency plan for Shoreham.

N Response 9.

(1) August 29, 1983 Bragg to Dircks - Response to letter of July 22, i

1983 from Dircks.

10. Provide of all documents concerning any review, by or on behalf of FEl%,

Revision I of the LILOO Transition Plan.

Response 10.

(1) August 9,1983 - Johnson to Wingo - LIIDO Revisions to Plan as submitted through ASLB.

11. Provide copies of all doctanents analyzing, reviewing or concerning the authority of LIILO, or any private utility or corporation to implement all or part of the LIILO Transition Plan or any offsite emergency plan.

Response 11.

(1) June 13, 1983 - Tanzman to Johnson (Legal Issues presented by Shoreham REP Plans) - subject to determination of privilege.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board f

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)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Supplement to Suffolk County Motion to Compel Discovery have been sent to the following this 12th day of September, 1983 by U.S. mail, first class, except as otherwise noted:

• James A. Laurenson, Chairman R&lph Shapiro, Esq.

Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C. 20555 New York, New York 10016

• Dr. Jerry R. Kline *W. Taylor Reveley, III, Esq.

Atomic Safety and Licensing Board Hunton & Williams U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. 20555 707 East Main Street

Richmond, Virginia 23212

• Mr. Frederick J. Shon Atomic Safety and Licensing Board Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Commission Twomey, Latham & Shea l Washington, D.C. 20555 33 West Second Street Riverhead, New York 11901 David J. Gilmartin, Esq.

t Suffolk County Attorney Docketing and Service Section H. Lee Dennison Building Office of the Secretary Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11788 Washington, D.C. 20555

• Bernard M. Bordenick, Esq.

• Eleanor L. Frucci, Esq.

David A. Repka, Esq. ~

Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel i Washington, D.C. 20555 U. S. Nuclear Regulatory Commission

! Washington, D.C.- 20555 l

• By Hand

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Nora Bredes

• Stewart M. Glass, Esq.

Executive Director .

Regional Counsel

! Shoreham Opponents Coalition Federal Emergency Management 195 East Main Street Agency Smithtown, New York ,,11787 26 Federal Plaza , Room 1349

, New York, New York 10278 MHB Technical Associates 1723 Hamilton Avenue James B. Dougherty, Esq.

Suite K 3045 Porter Street, N.W.

San Jose, California 95125 Washington, D.C. 20008 i - m..

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Karla\J. Letsche

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MIRKPATRICK, KHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800

Washington, D.C. 20036 -

DATED: September 12, 1983 f

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