ML20084Q869
| ML20084Q869 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/17/1984 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8405210560 | |
| Download: ML20084Q869 (8) | |
Text
RE@
LILCO, Mny 17, 1984 r
f0 UNITED STATES OF AMERICA D4 NUCLEAR REGULATORY COMMISSION ffgy A10:59 ur n,,.Esq.,.
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Before the Atomic Safety and Licensing Board
$y In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
)
(Emergency Planning Proceeding)
(Shoreham Nuclear Power Station, )
Unit 1)
)
LILCO'S RESPONSE IN SUPPORT OF FEMA'S RESPONSE TO SUFFOLK COUNTY REQUEST FOR PRODUCTION OF DOCUMENTS LILCO supports FEMA's opposition to the production of cer-tain documents a'sociated with the RAC review process, numbered s
as items 1-37 at pages 5-6 of " FEMA's Response to Suffolk Coun-ty Request for Production of Documents" dated May 14, 1984, if and, in support thereof, states as follows:
1.
The executive privilege, clearly recognized in general federal law and NRC case law, has already been applied in this proceeding by both this Board and the Brenner Board.
See Memo-randum and Order Ruling upon LILCO's Motion to Compel 1/
The Suffolk County Request for Production was filed on April 20.
Suffolk County subsequently (May 8, 1984) filed a
" Motion to Compel Response to Request for Production of Docu-ments."
That May 8 paper does not add any new issues to the pending discovery dispute, though its characterization of the context of this dispute should be clarified, and is, in para-graph 3 of this Response.
8405210560 840517 P.DR ADOCK 05000322 4
U-PDR
0 Production of Documents and Objections of Governor Mario Cuomo (March 7, 1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-82-82, 16 NRC 1144 (1982).
Assuming that the 37 documents that FEMA seeks to protect are characterized correctly in the FEMA Responso and in the accompanying affidavit of FEMA Direc-tor Guiffrida, 2/ they fall clearly within the category of de-liberative documents and therefore should be protected to pre-serve the integrity of the deliberative process.
2.
That conclusion is buttressed in this case by two ad-ditional circumstances relating to the function of the RAC re-view and the structure of the RAC.
The basic issue in this proceeding is the adequacy of the LILCO Transition Plan, not that of the RAC review.
The RAC review has been provided to the NRC as an advisory document at NRC request pursuant to the FEMA-NRC Memorandum of Understanding.
45 Fed. Reg. 82713, 82714 (December 16, 1980).
It becomes a part of the record o.f the case, but does not define the issues in it (the contentions do);3/ nor is it, unlike testimony, dispositive of those issues 2/
A finding by the agency head that production of certain documents would be contrary to the public interest is entitled to " great weight."
See Consumers Power Co. (Midland Plant, finits 1 and 2), ALAB-33, 4 AEC 701, 706 (1971).
3/
The County, in fact, eschewed recently any intent that the RAC review serve as the basis for redefinition of issues in (Footnote continued)
1 o legitimately in controversy to which it relates.
- See, e.g.,
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1251 (1982).
It serves a function closely analogous to that of the letter placed in each licensing docket by the NRC's Advisory Committee on Reactor Safeguards (ACRS), which becomes part of the record of the proceeding, 10 C.F.R. 5 50.58, but is not subject to cross-examination, see Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 7 AEC 331, 340 (1973).
Deliberations and advisory opinions in preparation of the ACRS report are protected by executive privilege.
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-74-16, 7 AEC 313 (1974) and Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-33, 4 AEC 701 (1971), aff'd ALAB-123, 6 AEC 331 (1973).
See also Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-81-4, 13 NRC 216 (1981) and Consumers Power Co.
(Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117 (1980).
Further, the structure and functioning of the RAC itself
-- a collegial, advisory body of experts in their (Footnote continued) this proceeding.
See LILCO's Motion to Set Deadline.for Sub-mission of New Contentions Relating to RAC Review (April 13, 1984), Suffolk County Response to LILCO's Motion to Set Dead-line for' Submission of New Contentions Relating to RAC Review (April 23, 1984), and LILCO's withdrawal of its motion at the hearing on April 24, 1984, Tr. 6647-6651.
i
J.: subject-areas, not all of whom are employees of the parent agency -- are closely analogous to that of the ACRS.
As the Commission's regulations, practice and applicable case law in-dicate, the deliberations and records of the ACRS are protected by executive privilege.
Id.
The RAC's deliberations and records and, a fortiori, the records of its individual members and censultants, should be given protection analogous to that given the closely comparable ACRS.
3.
While the executive privilege can be overcome by a showing of " compelling need," see Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221 (1983), or " exceptional circumstances," see Consumers Power Co. (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117 (1980), nothing advanced in either of Suffolk County's pa-pers to date attempts to meet these high standards.
Nor do the circumstances suggest that the requisite showing could be made.
The County argues that the requested documents are necessary to conduct depositions of individual RAC members and consultants.
This argument overlooks the fact that the relevance of the RAC report to issues in this proceeding is simply as an exhibit to FEMA's testimony; LILCO's plan, and the contentions concerning it, and not the RAC review, are the subject matter of this pro-ceeding.
]
Additionally, the RAC Review is a collective document.
If the individual RAC members and consultants hold a spectrum of
L 0 views on any given issue, that fact does not vitiate the valid-
)
ity of the consensus expressed in the report.
Resolution of divergent individual views is an inherent part of the committee process and the privacy of that process has been consistently recognized as being entitled to protection.
In short, disclo-sure of the materials sought to be protected is unlikely to produce or to lead to the production of relevant information and would chill the conduct of the committee deliberations pro-Cess.
The County's motion also omits reference to the fact that it has already obtained major document discovery regarding FEMA's review of the LILCO Transition Plan pursuant to a sepa-rate FOIA request.
The County complains (Motion to Compel Re-sponse, note 2, at pp. 2-3) that FEMA withheld a seven-page list of documents in its response to the County's FOIA request.
It does not state that the documents turned over by FEMA in re-sponse to the FOIA request consist of a six-inch-high stack of papers including memoranda, letters, notes and documents of varying degrees of formality, covering a wide range of FEMA's review of the LILCO Transition Plan.
As is noted in EEMA's Re-sponse at 2-4, forty of these documents relate to the RAC re-view.
Given these documents, and the further documents provid-ed with FEMA's Response (id. at 4-5), Suffolk County will hardly be without background documentary support to_ prepare for-its two days of depositions of FEMA personnel.
There is, on
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2 V this record, no compelling need, sufficient to overcome execu-tive privilege, to warrant compulsory disclosure of the addi-tional documents the County seeks.
Nor do there appear to be any " exceptional circumstances" surrounding the process or results of the RAC review that could overcome the presumption of regularity in its proceeding in this case; LILCO is aware of none, and Suffolk County has not alleged any.
For the above reasons, if the Board finds upon examination that the documents sought by Suffolk County are within the scope of the executive privilege, the Board should protect them against compulsory disclosure.
t Respectfully submitted, LONG ISLAND LIGHTING COMPANY On&Y Donald P.
Irwin Renee R.
Falzone HUNTON & WILLIAMS P.O. Box 1535 707 East Main Street Richmond, Virginia 23212 DATED:
May 17, 1984 r
4 LILCO, May 17, 1984 CERTIFICATE OF SERVICE In the Matter of
'LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
(Emergency Planning Proceeding) Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S RESPONSE IN SUP-PORT OF FEMA'S RESPONSE TO SUFFOLK COUNTY'S REQUEST FOR PRODUC-TION OF DOCUMENTS were served this date upon the following by first-class mail, postage prepaid, or by hand (one asterisk),
or by Federal Express (two asterisks), or by telecopy (three asterisks).
James A.
Laurenson,*
Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R. Kline*
Atomic Safety and Licensing Atomic Safety and Licensing l
Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory i
Commission Commission East-West Tower, Rm. 427 Washington, D.C.
20555 4350 East-West Hwy.
I Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
David A. Repka, Esq.
l Mr. Frederick J. Shon*
Edwin J. Reis, Esq.
Atomic Safety and Licensing U.
S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
l Bethesda, MD 20814 Stewart M. Glass, Esq.**
l Regional Counsel Eleanor L. Frucci, Esq.*
Federal Emergency Management Attorney Agency Atomic Safety and Licensing 26 Federal Plaza, Room 1349 Board Panel New York, New York 10278 U.
S. Nuclear Regulatory Commission Stephen B. Latham, Esq.**
East-West Tower, North Tower
'Twomey, Latham & Shea 4350 East-West Highway 33 West Second Street Bethesda, MD 20814 Post Office Box 398 Riverhead, NY 11901 i
a
4' Fabian G.' Palomino, Esq.**
Ralph Shapiro, Esq.**
Special Counsel to the Cammer & Shapiro, P.C.
Governor 9 East 40th Street Executive Chamber Room 229 New York, New York 10016 State Capitol James B. Dougherty, Esq.**
Albany, New York 12224 3045 Porter Street Washington, D.C.
20008 Herbert H. Brown, Esq.***
Lawrence Coe Lanpher, Esq.
Jonathan D. Feinberg, Esq.
Christopher M. McMurray, Esq.
New York State Public Service Kirkpatrick, Lockhart, Hill Commission, Staff Counsel Christopher & Phillips 3 Rockefeller Plaza 8th Floor Albany, New York 12223 1900 M Street, N.W.
Washington, D.C.
20036 Spence W.
Perry, Esq.**
Mr. Marc W. Goldsmith Associate General Counsel Energy Research Group Federal Emergency Management 4001 Totten Pond Road Agency 500 C Street, S.W.,
Rm. 840 Waltham, Massachusetts 02154 Washington, D.C.
20472 MHB Technical Associates Ms. Nora Bredes 1723 Hamilton Avenue Suite K Executive Coordinator Shoreham opponents' Coalition San Jose, California 95125 195 East Main Street Smithtown, New York 11787 Mr. Jay Dunkleberger New York State Energy Office Agency Building 2 Martin Bradley Ashare, Esq.
Empire State Plaza Suffolk County Attorney H. Lee Dennison Building Albany, New York 12223 Veterans Memorial Highway Hauppauge, New York 11788 Gerald C.
Crotty, Esq.
Counsel to the Governor E2..cutive Chamber State Lapitol Albany, New York 12224 Renee R.' Falzone Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
May 17, 1984 l
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