ML20084S400

Memorandum in Opposition to FEMA Appeal & Request for Stay of Aslab 840518 Order Compelling Production of FEMA Documents.Certificate of Svc Encl.Related Correspondence

ML20084S400
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/23/1984
From:	Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20084S398	List: ML20084S396 ML20084S400
References
OL-3, NUDOCS 8405240459
Download: ML20084S400 (33)

Text

s RELATED CORRESPONDENM

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 34 MM 24 A11:10 Before the Atomic Safety and Licensing Appeal _ Board g gge c ~

%!dCETitic 5 SEF'!O BRANCH

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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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SUFFOLK COUNTY MEMORANDUM IN OPPOSITION TO FEMA'S APPEAL AND REQUEST FOR STAY OF MAY 18 BOARD ORDER COMPELLING PRODUCTION OF DOCUMENTS BY FEMA Suffolk County submits this Memorandum pursuant to the Appeal Board's Order dated May 22, 1984. That Order was issued following the Appeal Board's ex parte entry of an emergency temporary stay of the effectiveness of the Licensing Board's May 18, 1984 Memorandum and Order Ruling on Suffolk County Motion to Compel Production of Documents by FEMA (hereinafter "ASLB Order"). The Appeal Board's May 22 Order indicated that the question of whether the temporary stay should be continued pending full consideration and disposition of FEMA's appeal from the ASLB Order will be heard on May 23. This Memorandum sets forth the bases for Suffolk County's opposition to 1) a continuation of the stay; and.2.1 the Appeal Board's considera- l 4')

tion of the FEMA appeal. We discuss each of these matters below. l 1

8405240459 840523  %

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• I. Background on April 19, 1984, FEMA filed with the ASLB testimony of Thomas E. Baldwin, Joseph H. Keller, Roger B. Kowieski, and Philip B. McIntire concerning offsite emergency planning con-tentions. The FEMA testimony consisted of 99 pages of text, and several attachments including what is referred to as the

" RAC Report , " that is a report of the FEMA Regional Assistance Committee ("RAC") following its review (the "RAC review") of the LILCO Transition Plan, which was undertaken by FEMA at the request of the NRC. Apparently all of the FEMA witnesses par-ticipated in the so-called "RAC review." All the witnesses have authored some of the documents at issue in this discovery dispute. The witnesses have attached the RAC Report to and as part of their prefiled testimony and intend that it will be o f fered into evidence. In addition, in their testimony they expressly rely upon the findings of the RAC as the basis for the opinions and conclusions they express concerning the ade-quacy of the LILCO Plan and the accuracy of Intervenors' con-tentions concerning the Plan.

Upon receipt of the FEMA testimony, Suffolk County. filed and served a Request for Production of Documents by FEMA, dated April 20, 1994. A copy is Attachment I hereto. Having

e e received no response to that discovery request, and in light of the need to schedule depositions prior to the scheduled cross-examination of the FEMA witnesses beginning on May 29, the County filed a Motion to Compel Response to Request for Produc-tion of Documents by FEMA on May 8. See Attachment 2 hereto.

The Board and parties discussed the County's Motion and on May 9 agreed upon a schedule for the filing of FEMA's Response, a Motion by the County to Compel Production of Withheld Documents, and a Board ruling on that motion by May 18. The schedule was designed so that the documents could be turned o.er to the County (if so ordered by the Board) in time for them to be reviewed by County counsel prior to the depositions of the FEMA witnesses which were scheduled for May 23 and 24.

See Tr. 8751-54, which is Attachment 3 hereto.

Despite the requirement that "on Monday, May 14th, FEMA will file a list of all the documents which meet the [ County's document] requests and a list of its objections to the request for documents" (Tr. 8752 (Laurenson)), the County received'the FEMA Response to Suffolk County Request for Production of Documents (hereinafter, " FEMA Response") on May 15. The FEMA Response is Attachment C to the ASLB Order.1/ In addition,.at 1/. As noted below, the ASLB Order is Attachment 6 hereto.

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i approximately 4:00 p.m. on May 15, the County received a letter-from FEMA counsel (Attachment 4 hereto) which purportedly "sup-

.plemented" the FEMA Response. The letter stated that documents

. responsive to the County's document request -- apparently in addition to those identified in the FEMA Response -- have been-

" requested"'from RAC members, but apparently not yet received i by FEMA counsel or included in the listing. contained in the FEMA Response. - The May 15 letter also stated that "two or three additional items that may be responsive" tx) the request "have been forwarded" to FEMA counsel but have not yet been received. Thus, as of May 17, 1984,'the County had still not received a complete response to its April 20 document request.

Nonetheless, pursuant to the agreed upon schedule, on May

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17 Suffolk County filed a Motion to Compel Production of Documents Identified by FEMA'on May 14 and 15 (hereinafter the

" County Motion"). .The Motion is Attachment 5 hereto. In the Mrtion, the County requested the Board to issue an order com-pelling FEMA to' produce the 37 documents identified (but-withheld from _ production) on pages 5-8 of . the FEMA Response, as well as all remaining responsive documents subsequently located

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by-FEMA counsel. The County's' Motion expressly addressed only the 37 documents identified in the FEMA' Response,-however, since the: remaining documents'had not yet been identified by FEMA counsel.

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• During a conference call on May 18, the ASLB issued its -

ruling on the County Motion. It ordered FEMA to turn over to Suffolk County 30 of the 37 identified documents. See ASLB Order, which is Attachment 6 hereto. Pursuant to FEMA counsel's oral request for a temporary stay of the ASLB Order, the Board also issued on May 18, 1984 an Order Granting Tempo-rary Stay, Attachment 7 hereto, (hereinafter, "ASLB Stay Order"), giving FEMA "until 5:00 p.m. EDT on Monday, May 21 to either have the documents in the hands of Suffolk County or to obtain an additional stay from the Appeal Board." ASLB Stay Order at 2.

At approximately 11:00 e.m. on May 21, County counsel received FEMA's two sentence Notice of Appeal and Request for a Stay of an Order of the Atomic Safety and Licensing Board.

Shortly thereafter, the County filed with the Appeal Board its Preliminary Suffolk County Response to FEMA's Notice of Appeal ~

and Request for a Stay of Order of the Atomic Safety and Licensing Board, which stated the County's " intention to respond to v.hatever additional pleadings may be filed by FEMA in support of its Appeal and Request for a Stay should this Board be inclined to consider at all FEMA's interlocutory appeal and request for a stay . . . .

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o Despite telephone conversations among counsel, during which counsel for FEMA promised (1) to notify County counsel when additional papers were filed with the Appeal Board, and (2) to provide copies of such papers to the County upon their completion, the County first learned that FEMA had filed addi-tional pleadings with the Appeal Board When the Appeal Board's secretary telephoned to inform us of the Appeal Board's Tempo-rary Stay Order. The County never did receive FEMA's Memoran-dum or Affidavits on May 21. We were able to obtain a copy from the NRC Staff on May 22.

II. Ther,e is No Basis for Granting an Additional Start of the ASLB Order.

10;C.F.R. $ 2.788 sets forth four factors which must be 1

considered in determining Whether to grant or deny an applica '

tion for a stay. Those factors are:

1) Whether tha moving party has made a strong showing that it is likely to prevail on the merits;

2) Whether the party will be irreparably injured unless a stay is granted;

3) Whether the granting of a stay would harm other parties; and

4) Where the public interest lies.

In the ASLB Stay Order, the Licensing Boarc stated:

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This Board finds that only one factor, the possibility of irreparable injury sheuld a stay not be granted, weighs in favor of granting FEMA's request. We do not find that FEMA has made a strong showing that it is likely to prevail on the merits, nor that the public interest lies on the side of non-disclosure of the subject documents.

Furthermore, the grant of a stay would cause inconvenience to Suffolk County.

ASLB Stay Order at 2. The FEMA Memorandum filed in support of its stay application does not overcome FEMA's failure to meet the Section 2.788 standards. Accordingly, the request for an additional stay should be denied.

A. FEMA Cannot Demonstrate A Strong Probability of Prevailing on the Merits of its Privilege claim The FEMA Memorandum does not even address the merits of 4

FEMA's privilege claim, much less make the requisite " strong

! showing" that FEMA is likely to prevail on the merits. Al-

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though some arguments made in papers filed with the ASLB are repeated in the FEMA Memorandum, none of the arguments on the merits which were made in the County's Motion are addressed, and the grounds for the ASLB's Order are also ignored. Thus, in the face of the ASLB's ruling against FEMA on the merits of its privilege claim, FEMA has submitted nothing but a rehash of its original arguments which were rejected by the.ASLB.

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Clearly, FEMA has made no showing of likelihood to prevail in the merits.

For the reasons stated in sections 1-4 belcw, the County believes that FEMA could not prevail on the merits, if a stay were granted.

1. The Executive Privilege Does Not Apply to the Documents at Issue Although it is difficult to discuss in any detail the documents being withheld because the descriptions provided by FEMA are so uninformative, it nonetheless seems clear that given their subject matter, most if not all of them, are not subject to the executive privilege. It is well established that the privilege "does not attach to purely factual communi-cations, or to severable factual portions of communications, the disclosure of which would not compromise military or state i secrets." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1114, 1164 (1982), citing EPA v. Mink, 410 U.S. 73 at 87-88. See also Brand v. Phillips Petroleum Co., 628 F.2d 873 (5th Cir. 1981).

The documents at issue all relate to the RAC Review or the RAC Report which is attached to the testimony of the FEMA witnesses. That review, and the resulting report, consists of

a purely. factual material -- that is, whether or not the LILCO Plan contains or does not contain various elements identified in NUREG 0654. Indeed, many of the documents being withheld appear to be nothing more than the particular findings of fact by RAC members' -- labeled " comments" in the FEMA document listing -- that eventually became the RAC Report that is relied upon by.the FEMA witnesses in their testimony. Such purely factual material is not subject to executive privilege.

Furthermore, the executive privilege is designed to protect the internal policy formulation or decision-making process in a governmental agency. Despite the incantation of the words " pre-decisional," " thought processes," and "delibera-tions" in the FEMA Response and the FEMA Memorandum, there is no indication either in those documents, or in the description of the withheld documents, that the findings or notes of RAC members, drafts of the RAC Report, or the identified memoranda have anything to do with FEMA policy or decisions or~delibera-t tions about FEMA policies.

As stated in the FEMA Response, the RAC members engaged in "a technical review" of the LILCO Plan._ FEMA Response at 9.-

Their purpose was to make findings of fact,'not to set FEMA policy or to make decisions for that agency. Indeed,-with the

exception of the RAC Chairman (FEMA witness Roger Kowieski),

the RAC members are not even FEMA employees. The " comments" of the RAC members are technical factual' findings concerning the contents of the LILCO Plan. They have nothing to do with any internal FEMA policy formulation or decisionmaking. FEMA has failed te, and, in the County's view could not, demonstrate that'any of the documents at issue deal with the type of nonfactual, policy, or decision-making matters that the execu-tive privilege is designed to protect.

The County thus disagrees with the ASLB's. ruling that the FEMA findings " involve the decision making process of government which is protected by executive privilege." ASLB Order at 6. The RAC " findings" are just that -- factual observations and conclusions about whether the LILCO-Plan does or does not contain the specific elements identified in NUREG 0654. There is no " policy" or " decision" making process in-volved in identifying or " finding" facts. The executive privilege does not apply to the RAC findings, or individual RAC member findings.

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2. Even if a Privilege at One Time Attached l to the Documents, the Privilege Has Been Waived Even assuming for the sake of argument that the executive privilege could have attached at one time to some of the documents at issue, it is clear that by its own subsequent actions FEMA has waived such privilege. FEMA intends to intro-duce the RAC Report into evidence in this proceeding. The FEMA witnesses have attached the report to their prefiled testimony.

, In addition, those witnesses state throughout their testimony i

that their opinions and conclusions concerning the LILCO Plan are based upon the RAC findings. In addition, at least three of the FEMA witnesses (Messrs. Keller, Baldwin, and Kowieski) participated in the RAC review, and authored several of the documents being withheld.

Clearly, the County, the Board, and the other parties are entitled to probe the bases for the opinions and conclusions stated by the FEMA witnesses in their testimony, both for im-

peachment purposes and otherwise to develop a full and complete record. See the March 6, 1984 Order which is Attachment B to ASLB Order, at 7-8. Since the FEMA witnesses rely in their j testimony upon the findings of the RAC, inquiry into the bases of the RAC findings is clearly not only proper, but essential.

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The FEMA position -- that no one is permitted to see or inquire into anythine other than the bare conclusions stated in the final RAC Report -- flies in the face of logic as well as the rules of procedure.

FEMA, in effect, attempts to use the executive privilege to bar any inquiry into the bases for the opinions of its witnesses. Clearly, once FEMA submits testimony, and relies upon factual findings in that testimony, it has waived any pre-existing rights to keep confidential the processes or means by which those findings and the conclusions of its witnesses were developed. See e.g., Houston Light and Power Co. (South Texas Project, Units 1 and 2), LBP-79-30, 10 NRC 594, 595 (1979). See also, March Order (Attachment B to ASLB Order) at

8. Given the circumstances of this case, to permit FEMA to abuse the executive privilege as it attempts to do, would be improper.

Sustaining FEMA's executive privilege claim with respect to the documents now at issue would accord a special "untouch-able d status to the FEMA witnesses. Such status has not been accorded any other parties' witnesses in this proceeding --

the parties and the Board have had or will have the opportunity to probe the bases for the opinionc of every other witness.

Thus, there is no basis for FEMA's unilateral view that its witnesses are entitled to shield from scrutiny any inquiry into the bases for their views. Such a shield, indeed, would be particularly improper in an NRC proceeding where FEMA's views allegedly are entitled to some sort of rebuttable presumption of correctness. See 10 C.F.R. $ 50.47(a)(2). How can a party rebut the views of FEMA witnessec if the party cannot even probe the bases for those views? Finally, sustaining FEMA's privilege claim would also improperly deprive all parties of their right under 10 C.F.R $ 2.743(a) to conduct "such cross-examination as may be required for full and true disclo-sure of the facts."

The ASLB agreed with the County on this mat ter. It stat-ed:

[T]he FEMA findings of the RAC Committee are directly relevant to the issue in con-troversy in this licensing hearing. In general, the parties should be permitted to inquire into those findings and the proce-dures which were followed to arrive at the FEMA concensus. Only by probing those findings and determinations will the parties and the Board be able to assess the weight to be given to those findings and determinations in our review under 10 C.F.R. 6 50.47(a)(2).

ASLB Order at 7.

Thus, even if a privilege at one time may have attached to some of the documents at issue, FEMA's subsequent reliance upon the RAC review in the testimony submitted in this proceeding, constitutes a waiver of the privilege.

3. In Any Event, the Alleged " Chilling Effect" of Releasing the Documents is Outweighed by the County's Need to Obtain the Documents As noted above, in applying a balancing test to determine whether the qualified executive privilege is overcome, the ASLB recognized that- the County's need for the documents at issue is substantial and compelling. The documents are the factual findings which underlie and form the basis for the RAC findings upon which the FEMA witnesses rely for the opinions and conclu-sions stated in their testimony. Without access to these I

documents, the County' would be unable to cross-examine the FEMA witnesses, to probe, challenge, or impeach their conclusions, or otherwise to present on the record of this proceeding all the relevant facts pertaining to the opinions of the FEMA witnesses. To deny the County access to these documents would constitute a violation of the County's rights under 10 C.F.R.

{2.743(a) and 50.47(a)(2) and would, in effect, accord special preferential treatment to one party's witnesses by shielding 2

those witnesses trom any meaningful inquiry or challenge.

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I The ASLB held that:

iT]he County should be able to discover the underlying documents that went into the formulation of the publicly disclosed RAC Report because the information sought appears to be reasonably calculated to lead to the discovery of admissible evi-dence. . . .

ASLB Order at 8. The Board went on to state:

[W]e find that the documents Which underlie the RAC Report are centrally important to the County's case in asserting that the LILCO Plan does not comply with NUREG-0654.

We do not find that cross-examination alone, without access to these documents, will be equivalent.

ASLB Order at 9.

Indeed, the County's need for these FEMA documents is even more substantial than that of LILCO with respect to the State of New York documents Which were the subject of the March ASLB Order. There, the Board held that LILCO's need for documents concerning a so-called " review" by certain New York employees (who were not witnesses in this proceeding), of.a draft plan different from the LILCO Plan at issue in this proceeding, out-weighed the State's interest in confidentiality. The Board

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stated:

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.At the present time, New York has become an active participant in opposition to LILCO.

New York expects to present witnesses who will testify concerning deficiencies or inadequscies in LILCO's current plan. We,

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therefore, conclude that fairness dictates  !

that LILCO should be given access to prior assessments of LILCO's earlier evacuation plan in' order to determine whether it can impeach New York's witnesses with prior in-

, consistent statements about the same or similar provisions of the plan. Obviously i

this information is not available to LILCO 4

through any other means. We find that LILCO has a compelling need to see these i documents. On the other hand, New York's fear of a " chilling effect on the ability of the DPC to receive written comments, concerns, and: opinions of its staff" is less compelling. . . . Frankly, New' York is not entitled to have its cake and to eat

{ it too. As an active participant in the proceeding, its interests in preserving secrecy are outweighed by LILCO's need to have these documents to effectively cross-examine New York's witnesses.

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4 Attachment B to ASLB Order at 7-8 (emphasis added).

4 The documents at issue here involve: (1) the very witnesses chosen by FEMA to submit testimony, (2) the very Plan at issue in this proceeding, (3) the actual RAC review and findings which are attached to and are a part of the testimony to be submitted into evidence by FEMA, (4) the . findings upon 3 which the FEMA witnesses expressly rely for.the opinions and i

conclusions contained in their testimony, and (5) the " FEMA findings and determinations" which are perhaps a rebuttable i

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presumption in this proceeding. Thus, the nexus between the FEMA documents and the matters at issue, as well as the County's need for those documents, are substantially greater than that presented by LILCO in March.

4. The Arguments on the Merits in FEMA's Memorandum Are Without Basis The FEMA Memorandum contains three assertions, which arguably relate to its position on the merits, which require correction and response.

First, the FEMA Memorandum states at page 9: "The County's documents make no showing of any circumstances requiring overriding the policy considerations of executive privilege." As the above discussion and a review of the County Motion makes clear, this FEMA assertion simply ignores the contents of the County's Motion as well as of the ASLB Order which in substantial part granted that Motion. This FEMA as-sertion is simply without basis.

Second, FEMA asserts on pages 5 and 10 of its Memorandum and in the Kowieski Affidavit, that the individual opinions of RAC membess "are irrelevant." The apparent basis for this as-sertion is the argument that: "7he RAC submitted itw final e

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, report Which reflects the collegial judgment of the RAC. . . .

The RAC review is a collective document. If the individual RAC members and consultants hold a spectrum of views on any given issue, that fact would not vitiate the validity of the consensus expressed in the report." FEMA Memorandum at 10, 11.

This FEMA argument should also be rejected. It ignores the applicable relevancy standard for discovery, Which is whether "the information sought appears reasonably calculated t

to lead to the discovery of admissible evidence." 10 CFR

$ 2.740(b)(1). The opinion of FEMA Counsel and Mr. Kowieski

, that the findings of individual RAC members, Which form the -

i basis for the " collegial" RAC findings "are irrelevant" also ignores reality. The RAC findings are included in FEMA's tes-

. timony on the contentions in this proceeding. See FEMA Re-sponse at 5. The FEMA witnesses also eNpressly rely on the RAC i findings in their testimony. FLMA counsel's suggestion that documents relating to the findings Which constitute the bases i

for his own 'sitnesses' testimony are irrelevant, is inexplica-ble and should be rejected out of hand. As the ASLB recognized, the requested discovery clearly is reasonably cal-culated to lead to the discovery of admissible evidence.

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!- Third, FEMA asserts that a Commission memorandum in  !

Consolidated Edison Company of New York (Indian Point, Units 2 and 3), Docket No. 50-247-SP, slip op. (August 20, 1982) supports its position that the documents relating to the RAC Report relied upon in the FEMA testimony are entitled to be

, kept secret. The referenced Commission memorandum is inappo-

! site. The issue ruled upon in that case was whether represen-

tatives of intervenors could observe activities inside the Indian Foint control room during a FEMA exercise. The Cormission's decision had nothing to do with discovery requests relating to testimony filed by FEMA witnesses, or to documents relied upon by witnesses in forming expert opinions expressed i

] in testimony. In addition, one of the stated reasons for the Commission's ruling that intervenors could not personally 4

i observe the FEMA exercise was the Commission's expectation that i i intervenors would have " access to extensive documentation gen- '

erated by the NRC and FEMA staffs during the exercise. . . .

Id. at 3. Clearly, that situation is in no way analogous to

this case, where FEMA is attempting to limit the documents relating to the RA'C findings available to Suffolk County to 4

only the final RAC Report. FEMA's reference to Indian Point is simply irrelevant.

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e For the reasons set forth in sections 1-4 of this section, the County submits that FEMA could not succeed on the merits of its privilege claim even if a stay were granted and the Appeal Board were to consider its appeal. Accordingly, FEMA's stay application abould be denied.

• B. FEMA Has Failed to Satisfy the Other Requirements of Section 2.788 l

l FEMA's Memorandum has substantial discussion of the so-l called " irreparable injury" Which would result if it were forced to comply with the ASLB Order. However, the discussion in the FEMA Memorandum of irreparable harm is substantially identical to the " chilling effect" argument made by FEMA in support of its wishholding of documents in its original filing with the ASLB. FEMA asserts that releasing the documents at issue would have a chilling effect on RAC efforts at other plants. The ASLB expressly rejected that argument and found against FEMA as .follows:

On balancing the competing interests, we find that, as to most documents, the County's need to have these documents is greater than the harm or ' chilling effect'

-" which such release will have in decision making in the future. . . . We are most impressed with the fact that the FEMA RAC Report now constitutes FEMA's findings for purposes of 10 C.F.R. $ 50.47. . . . More-over, three members of the RAC will testify

'or FEMA. The FFMA testimony incorporates

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numerous references to the RAC Report.

Under these circumstances, it would be un- i l fair to deny the County access to the i

, underlying documents and processes by which i the RAC Report achieved its final form. . .

. FEMA intends to present testimony of i' three RAC members on May 29, in support of 3 its findings in the RAC Report. Thus, we l' find that the documents which underlie the -

RAC Report are centrally important to the j County's case in asserting that the LILCO

!- Transition Plan does not comply with 4

NUREG-0654. We do not find that I

cross-examination alone, without access-to j these documents, will be equivalent.

j ASLB Order at 8-9. Thus, the irreparable injury argument made i

by FEMA is a rehash of its argument on the merits, and it has

already been expressly rejected.

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i In its Memorandum, FEMA further clarifies its " chilling j effect" argument, however, by making explicit its belief that it is entitled to conduct the business of the RAC Review in se-crecy, with the findings of the RAC members never seeing the

light of day. The Affidavits of Messrs. McIntire and Kowieski.

i clearly reveal that FEMA wishes to cover up the factual data, which by law belongs'to the public and in the public. domain, and which FEMA itself.has placed into controversy in.this pro- '

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ceeding through its own submitted testimony. FEMA is a government agency, which purportedly acts on behalf of and in i

the public's interest. Indeed, in the FEMA Memorandum, FEMA i

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asserts that "The public interest requires a full, detailed, sometimes critical review of emergency plans, exercises and preparedness around nuclear plants. FEMA Memorandum at 9.

FEMA's extreme proteste against disclosure of the factual observations of RAC members, which purportedly are made for the public benefit, are inexplicable. .Indeed, as the ASLB noted:

Precumably, [the RAC members] submit their independent opinions concerning an evalua-tion of an emergency preparedness plan. We cannot see why those opinions would be different even if it were known that such opinions would become public.

A'SLB Order at 8.

It further is clear that if the factual observations and evaluations of RAC members would be affected or influenced by the knowledge that such observations would be subject to public disclosure, then such disclosure is even more essential. The public is certainly entitled to know if a public body that is supposedly serving its interests and protecting its safety says one thing in secret meetings behind its own closed doors, but says something else in a formal repo'rt submitted to the NRC in support of the licensing of a nuclear power plant. FEMA's cover-up attempt aside, it is clear that the public interest, and the interest of Suffolk County as a litigant in this

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proceeding, can only be harmed by honoring FEMA's self-serving demands for secrecy. Clearly, FEMA has failed to meet the standards set fo rth in 10 C . F. R. 4 2.788(e)(3) and (4).

Furthermore, FEMA's arguments about the need to change its internal procedures "to ensure that individual RAC member views will never be discoverable again" (McIntire Affidavit at 1),

and the supposed delays in RAC reviews relating to Shoreham and other plants in New York end New Jersey (McIntire Affidavit at 2), are irrelevant, unsupported, pure speculation, and self-i serving. They are clearly nothing more than an attempt to bol- l ster the not very veiled threat, stated on page 11 of the FEMA 1 Response, that "If the NRC expects to receive full cooperation of FEMA and the RAC," it should be willing to ignore the law and rules of procedure and allow FEMA to conduct its public business in secret. This FEMA argument should be rejected; the County assumes that this Appeal Board is not susceptible to such blackmail threats, in the face of the compelling legal and factual reasons that reauire the very disclosure FEMA seeks to avoid. FEMA must be held to the same legal standards as are other litigants; there is no basis for permitting the FEMA witnesses -- as opposed to all others -- to find facts or ar-rive at opinions or conclusions by means of secret shielded activities, behind closed doors, barred from public disclosure.

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Both the public interest and the interest of Suffolk County require that there be no further stay and that the ASLB's Order be enforced.

For the reasons previously stated, the County believes there is no basis for the issuance of an additional stay of the ASLB Order, primarily because FEMA has made no strong showing of a probability of succeeding on the merits, and has failed to J

j meet the other requirements of 10 C.F.R. f 2.788. If, however, the Appeal Board believes there is a need to consider the merits of the FEMA appeal, then because producing the documents at issue would moot FEMA's confidentiality claim, a stay may be appropriate. Should the Board so determine, the County wishes the Board to understand the implications of that determination

so appropriate guidance can be provided to the ASLB.

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l Although FEMA asserts that the issuance of a stay "will l

t not result in substantial hardship to any party" because depo-sition schedules and hearing schedules can be adjusted "with a

! minimum of disruption" (FEMA Memorandum at 8), FEMA is incor-rect. The FEMA witnesses are presently scheduled to be i cross-examined on their prefiled direct testimony next week --

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May 29-June 1. The County's discovery requests and attempts to take the depositions of the FEMA witnesses were all structured 24 -

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so documents could be obtained and reviewed prior to j depositions, depositions could be taken during breaks in the hearing (so counsel would be available to take and defend the depositions), and the discovery could be concluded before cross-examination. As a result of delays by FEMA in responding i to the County's document requests, and the FEMA appeal of the

. ASLB Order, the FEMA depositions have not yet occurred. If an additional stay is granted, they will not occur this week or early next week. Clearly, as the ASLB and even FEMA have recognized, discovery must precede the appearance of FEMA's witnesses for cross-examination at the hearing. Thus, the is-suance of an additional stay would make it impossible to go forward with the hearing as scheduled for the week of May 29-June 1.

Contrary to FEMA's assertion, an " adjustment," i.e., mov-f I ing other testimony and witnesses into the May 29-June 1 slot now set for cross-examination of FEMA, would result in substantial prejudice to Suffolk County, even if LILCO were able to " arrange for other witnesses" to appear in place of the FEMA witnesses. .The County has been preparing for the

, cross-examination of FEMA's testimony, not other matters; if the hearing were to go forward according to a new schedule, the County would b'e forced to proceed without adequate preparation, t

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and would clearly be prejudiced. Thus, if an additional stay is to be granted, the Appeal Board should advise the ASLB to adjust the hearing schedule accordingly, by cancelling the hearing now set for FEMA's witnesses next week and not scheduling new testimony for which the County has not been able to prepare.

III. This Interlocutory Appeal Should Not Be Considered at All It is well established that as a general rule, the Appeal Board will not exercise its discretion to entertain interlocu-tory appeals of discovery matters. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-609, 12 NRC 172, 173 n.2 (1980); Houston Lighting and i

Power Company (South Texas Project, Units 1 and 2), ALAB-608, 12 NRC 168, 170 (1980); Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-563, 10 NRC 449, 450 (1979). Indeed, the Appeal Board has stated that it is " par-ticularly reluctant to intrude into the conduct of a licensing board hearing in progress where the dispute is only over such preliminary questions as the manner of receipt of evidence or

, the conduct of discovery." Pennsylvania Power End Light Company and Allegheny Electric Corporation, Inc. (Susquehanna

s i s 7

Steam Electric Station, Units 1 and 2), ALAB-593, 11 NRC 761, 763 (1080). See - ]o Puget Sound Power and Light Comoany a

4 (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC t

693, 696 (1979).

i The issue here is one that is clearly encompassed within j this general principle. The ASLB, fully familiar with the l facts, issues, and testimony involved in this proceeding, has

+

reviewed 35 separate documents in camera and made individual rulings on privilege claims in the context of this proceeding i

as a whole. The Appeal Board is not in a position to overrule the essentially factual findings of the ASLB concerning the-i balancing of interests that requires the release of documents by FEMA. Indeed, in a case in which petitioners' challenged a 1

j 1

special master's grant of a claim of privilege, the Appeal Board ruled:

[T]he contention that the denial of a claim i of privilege (much less its grant) enjoys a i

special status deserving of interlocutory i rc<?iew has been expressly rejected by the j Supreme Court [ citing Will v.' United States, 389 U.S. 90 (1967)). We think it wisest to continue our own adherence to that same practice.

9

{ Toledo Edison Company (Davis-Besse Nuclear Power Station),

4 AIS.9-? n 0, 2 NRC 752, 768-69 (1975). The Appeal Board stated i

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____________T_J._____________..________.___ _________.____.____M?__'___*~__'__.__*

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6 1 a

i that relaxation of the general rule against granting 4

interlocutory appeals was not justified when the effect would be "to grant interlocutory review simply to reexamine sui oeneris rulings on individual privilege claims." Id. The Board so held both because such review would slow the proceed-ing, and because the licensing board was in a better position

'to evaluate claims of privilege than was the Appeal Board. Id.

In light of FEMA's failure to make any showing of likeli- i hood to prevail on the merits, and the fact that non-disclosure of the documents at issue would be contrary to the public in-terest, the interests of Suffolk County, and the l well-established principles governing discovery, qualified privilege, and litigants' rights to probe the bases for opinions of opponents' witnesses, the Appeal Board should not entertain FEMA's interlocutory appeal of the ASLB's discovery

! order.

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8 IV. Conclusion For the foregoing reasons, FEMA's Notice of Appeal.and Re-  ;

quest for a Stay should be denied.

Respectfully submitted, Martin Bradley Ashare

1. Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788

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ert H. Br Lawrence Coe npher Karla J. Lets e Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County Dated: May 23, 1984 l

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{ . - _ _ - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ . .- . _ _ _ _ _ _ _ _ _ __ __ . _ _ _ _ __ _.

s UNITED STATES OF AMERICA NUCLEAR REGULATOKY COMMISSION Before the Atomic Safety and Licensino Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY MEMORANDUM IN OPPOSITION TO FEMA'S APPEAL AND REQUEST FOR STAY OF MAY 18 BOARD ORDER COMPELLING PRODUCTION OF DOCUMENTS BY FEMA dated May 23, 1984, have been served to the following this 23rd day of May, 1984 by U.S. mail, first class, except as otherwise noted.

James A. Laurenson, Chairman Ralph 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 James B. Dougherty, Esq.

Administrative Judge 3045 Porter Street, N . W. .

Atomic Safety and Licensing Board Washington, D.C. 20008 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.*

Hunton a Williams P.O. Box 1535 707 East Main Street Mr. Frederick J. Shen Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board Mr. Jay Dunkleberger U.S. Nuclear Regulatory Commission New York State Energy Office Washington, D.C. 20555 Agency Building 2 ,

Empire State Plaza Albany, New York 12223

e ,

t Edward M. Barrett, Esq.

General Counsel

. Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 1 Mr. Brian McCaffrey Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham a Shea

Shoreham Nuclear Power Station P.O. Box 398 i' P.O. Box 618 33 West Second Street >

North Country Road Riverhead, New York 11901

{ Wading River, New York 11792 1

! Ms.*Nora Bredes 4

Marc W. Goldsmith Executive Coordinator

Energy Research Group, Inc. Shoreham Opponents' Coalition

400-1 Totten Pond Road 195 East Main Street l Waltham, Massachusetts 02154 Smithtown, New York 11787 Joel Blau, Esq. MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue

! The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125

Empire State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Luffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building i Suffolk County Attorney Veterans Memorial Highway l H. Lee Dennison Building Hauppauge, New York 11788 i Veterans Memorial Highway i Hauppauge, New York 11788 i Atomic Safety and Licensing Board Atomic Safety and Licensing Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 j ,

t Docket'ing and Service Section f Office of the Secretary U.S. Nuclear Regulatory Commission Jonathan D. Feinberg, Esq.

1717 H Street, N.W. Staff Counsel

Washington, D.C. 20555 New York State Public Service Commission Bernard M. Bordenick, Esq.* 3 Rockefeller-Plaza David A. Repka, Esq. Albany, New York 12223 Edwin J. Reis, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 r

9 a

_ _ _ _ _ _m.___ -. _..__________m_ _ _ _ _ _ _ .

, l l Spence Perry, Esq.

Stuart Diamond Associate General Counsel

, Business / Financial Federal Emergency Management New York Times Agency 229 W. 43rd Street Washington, D.C. 20472 New York, New York 10036 4

Stewart M. Glass, Esq.* Eleanor L. Frucci, Esq.

Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 Washington, D.C. 20555 Fabian Palomino, Esq.# Mr. Howard A. Wilber

• Spe:iel Counsel to Atemic Safety and Licensing the Governor Appeal Board Executive. Chamber, Room 229 U.S. Nuclear Regulatory State Capitol Commission Albany, New York 12224 Washington, D.C. 20555 Allen S. Rosenthal, Chairmar

• Pz. Gary J. Edles

• Atcmic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board l U.S. Nuclear Regulatory U.S. Nuclear Regulatory l Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

^ '

^ ((f Karla J. Letsch(

KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATED: May 23, 1984

• By Hand

• By Telecopier et 8

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e UNITED STATES OF AMERICA h"JCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUFFOLK COUNTY REQUEST FOR PRODUCTION OF DOCUMENTS BY FEMA Pursuant to 10 CFR SS 2.741 and 2.744, FEMA is requestod by suffolk County to produce for inspection and copying, at the offices of Kirkpatrick, Lockhart, Hill, Christopher & Phillips, the documents specified below that are within the possession, custody, or control of FEMA, the Regional Assistanco Committoo, its contractors, subcontractors, agents, or attornoys.

Definitions and Instructions For Documnnt Production The definitions and instructions applicable to this Request are the same as those not forth in Suffolk County Interrogatories to the.NRC Staff and TEMA, filed August 12, 1983, and hereby incorporated my reference, except that Subparts L thro 1'7h P, and W, of such Definitions and Instructions are not applicable to this Roquest.

LU f'l20j ^l'l L

6

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~~~ ~ Documents Requested ,

l All documents that were produced in connection with, or in any way relate to the FEMA Regional Assistance Committee ("RAC")

review of the LILCO Transition Plan for the Shoreham Nuclear Power Station, including, but not limited to, the following (but not including the LILCO Transition Plan itself or NUREG 0654):

1. All memoranda, correspondence, questions, comments, l reports, evaluations, ratings, summaries, notes, including drafts, relating to the RAC review of the LILCO Transition Plan.

2. All drafts or revisions of reports, comments, evaluations, l

or other documents including drafts of and comments relating to, the document entitled " Consolidated RAC Review Dated February 10, 1984," which is attached to the Direct Testimony of Thomas E.

l l Baldwin et al. Concerning Phase II Emergency Planning dated April 17, 1984 and filed in this proceeding.

3. All transcripts, minutes, summaries or notes of meetings, I discussions or conferences, including telephone conferences, among RAC members or others relating to the RAC review of the LILCO Transition Plan. .

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Respectfully submitted,._,,

Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 1

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HerbertjH. Brown V Lawrence Coe La@her

! Karla J. Letsche

John E. Birkenheier KIRKPATRICK, LOCKHART, HILL, 1 CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

Washington, D.C. 20036 i

Attorneys for Suffolk County Dated: April 20, 1984 i

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ATTACID1ENT 2 e

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

)

In the Matter of )

. )

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, ) -

Unit 1) )

)

SUFFOLK COUNTY MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS BY FEMA For the reasons set forth below, Suffolk County, pursuant to 10 CFR Section 2.740(f), hereby requests that the Board order FEMA to respond to the Suffolk County Request for Produc-tion of Documents by TEMA, dated April 20, 1984.

On Friday, April 20, Suffolk County filed a Request for Production of Documents by FEMA. Counsel for FEMA was served with this document on Monday, April 23.1/ During the hearing

-1/ Th'e document was aeliverea to :EMA Counsel's New York office by Federal Express on Monday, April 23. The County also hand delivered a second copy to FEMA Counsel in Washington, D.C. on Wednesday, April 25.

[ $ $

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hu M on Thursday, April 26, the County made clear its need for a response to its document request prior to its conducting depo-sitions of FEMA's witnesses, then scheduled for May 8 and 9, and FEMA counsel stated that the respon=* would ha provided to the County by May 1 or 2. Durinq numerous conversations with counsel, FEMA counsel has made clear that he does not intend to produce several documents that are responsive to the County's document requestr nonetheless, neither a response to that re-quest nor a motion ,fgr a protective order has yet been filed by FEMA. In addition, the County has also made clear that it needs the documents requested, or at least a Board ruling up-holding FFMA's decision to withhold those documents, in order to be able adequately and effectively to conduct depositions of FEMA witnesses. Without having received either a response to its document request that identifies the documents being withheld and the basis for such non-production, or a motion for a protective order that could be opposed and a Board ruling ob-tained, the county cannot seek production of any specific documents, and, indeed, also cannot proceed with properly i focused depositions of the FEMA witnesses.E/ Under prior Board 2/

~

As FEMA counsel has mentioned, Suf folk County did file '

with FEMA a Freedom of Information Act request, and some documents were produced in response to that request on (Footnote cont'd next page)

l 1

i rulings in this case, the County is entitled to conduct such I l

discovery prior to having to cross examine the FEMA witnesses  !

i during the hearings.  !

As the Board was made aware en Friday, May 4, 1984, the j May 9 and 9 depositions have been cancelled because of FEMA's v failure,to respond to the County's document request. Suffolk

{ County is attempting to reschedule them during the two week break in the hearing (on May 22 and 23) so that the cross exam-ination of FEMA wit'ndsses can proceed as planned When the hear-I ing reconvenes on May 29, 1984. However, in order to take the i .

depositions at that time, it will be necessary to receive the i

j FEMA response and obtain whatever Board rulings may be neces- l sary prior to that time. Accordingly, the County requests that j TEMA be ordered to respond to the County's document request, and file its motion for a protective order to cover the documents it does not intend to produce by May 10, 1904.

4 1

(Footnote cont'd from previous page)

) May 1.. A seven page list of documents not produced was  ;

j also provided on that date. While the County has stated it does not seek to receive two copies of documents that may be responsive to both its FOIA request and its Request for Production of Documents, it is well established that is nonetheless is entitled to receive a response to its ,

i Request for Production of Documents, separate and apart from a respvouw to its FOIA request.

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_m_. .____ ...__

e

, Pespectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 Herbert H. Broen Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK, LOCKMART, HILL,

CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

Washington, D.C. 20036 Attorneys for suf folk County Dated: May 8, 1984

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e14-1-Su9 JUDGE LAURENSON: We are back on the record 2

now. We have an off-the-record cenference concerning the 3

discovery dispute between FEMA and Suffolk County concerning

, the April 20th, 1984 Suffolk County request for production 6

of documents by FEMA, and the Suffolk County motion to compel response to request for production of documents by FEMA, 7 whien was filed yesterday, May 8th, e

After an extensive discussion with all the parties,

, I am going to summarize my understanding of what has been in said and what has been agreed to, and then I will give all gi the parties an opportunity to add anything or corroct any-12 thing that I have said.

is The initial Suffolk County request for production i4 of documents by FEMA, dated April 20, 1984 listed three is categories of documents requested, on Page 2 of that re-ie quest, but did not indicate any particular date for the ir production of those documents other than what would be on-is compassed within the NRC regulations concerning production i, of documents.

2o The Suffolk County motion to compol, which was si filed yesterday, requested that FEMA be ordered to respond 22 to the County's document request and to file its motion

s fer a protective order to cover the documents it does not 24 intend to produce by May 10, 1984.

23 The discussion that we have had with Mr. Glass

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1. 753 s

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1. 14-2-sus for FEMA indicates that at the present time, he does not 2

believe that there are any documents that meet the re-quirements of Request Number 3 on Page 2 but that he has 3

a agreed to mest with the individual RAC Committee members 5

on Friday of this week to determine that there are no such 6 documents.

7 As to Request Number 1 and 2 on that page, it is a the present position of FEMA that those -- there are document 9

that meet those requests but that they are all privileged because they are essentially pre-decisional documents, the 10 n same type of executive privilege which FEMA has previously 12 asserted in this proceeding, that FEMA does not intend to 13 produce any documents in response to that raquest.

'~

14 After extensive discussions concerning scheduling, 15 it was agreed that on Monday, May 14th, FEMA will file a 16 list of all of the documents which meet the requests and 17 a list of its objections to the request for documents. On 18 Thursday, May 17th, FEMA will file copies of all of the 19 documents in question In Camera with the Board with a duoli-20 cate set of those documents being sent to the FEMA Washingto:

D. C. office. On that same date, Thursday, May 17th, all Z

21 22 parties, including suffolk County, of course, will file 23 their responses to tne FEMA objections to the production of 24 the documents. ,

25 The Board will endeavor to rule on all of these' n*

LTY33

1. 14-3-Sue objections and requests for protective order and motions to 2 compel on Friday, May the 18th, in order that the deposi-3 tions of FEMA witnesses may go forward as scheduled during d the next week.

5 This completes my recollection and notes of what 6 was said during our conference. If anyone else cares to 7 add to this or correct anything I've said, we will entertain a such statements now.

9 Just one point of clarification.

MR. GLASS: On 10 the items listed in Number 1, I am armerting the privilege 11 only for those documents that we have not already provided I 12 to the Kirkpatrick law firm. Some of the documents in Number 13 1 had already been provided to them.

And on a point of information. Would Ms. Letsche 5

need additional copies of those if they were already provided 16 in the FOIA request? It means a great deal of duplication.

17 MS. LETSCHE: No. I stated that I don't need

'8 extra copies, but I assume they will be identified-in your l'

response to my document request so that I know which of the 20

, , documents you produced in response to the FOIA request or 21

,- , the ones that are responsive to my document request.

i 22 MR. GLASS: Okay.

23 JUDGE LAURENSON: FEMA agrees to do that?

2 24

. s MR. GLASS: Yes.

25

. JUDGE LAURENSON: All right. Anything'else to

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'% 4-4-Suet supplement or correct what I have said on the record.

2 MS. LETSCHE: Just to supplement one item, Judge 3 Laurenson, and that is that, although you are absolutely 4

correct in stating that the County's original request for -

5 production of documents by FEMA did not include a date upon 6 which those documents were requested to be produced, that 7i during-discussions among counsel, both off and on the l

el record, it had been made clear by the County to Mr. Glass Sl that those documents were necessary prior to the conduct 10; of the depositions, and that a response to that document 11 i

request would be forthcoming prior to that time.

i 12 ! MR. GLASS: The County had the-opportunity to 13 serve the document request when they wanted. I am not going

'd to make any further comment.

'S JUDGE LAURENSON: All right. At this peint then,

'c i that concludes our discussion concerning the discovery dis-17 fputeconcerningdocumentsbetweentheCountyan'd5EMA.

18 We will take a ten minute recess at this point, ar.i we will reconvene with the LILCO ' panel concerning 2;

Cluster 11.

2' (Mhereupon, a recess is taken at 3:25 p.m.,

22 to reconvene at 3:45 p.m., this same day.)

23 end =14- '

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l ATTACID1ENT 4 o

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a h4 Federal Emergency Management Agency I r Region II 26 Federal Plar.a New York, New York 10278

- May 15, 1984

?

Karla Imtsche. Esq.

Kirkpatrick, lockhart, Hill Christopher & Phillips 1900 M Street, N.W.

8th Floor Washington, D.C. 20036

Dear Ms.14tsche:

This letter supplenents our response to Suffolk County's Discovery Request. FE4A has identified all ite:ns within the Regional and Headquarters office that is responsive to your request. In addition we have requested infomation that may be in the offices of the Regional Assistance Ca:nittee members.

Attached please find a Briefing Sheet supplied by'the Enviroarnental Protection Agency whien is responsive to the third item in your request.

We understand that two or three additional items that may be responsive to your request have been forwarded to our office from the Departnent of Transportation RAC member but we have not yet received this information.

I am also enclosing copies of a FB4A employee's Anticipated Workload Forns as they relate to Shoreham activities.

If you have any further questions please do not hesitate to contact this office.

Very truly yours, b.

Stewart M. Glass Regional Counsel l

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ATTACH?iENT 5 o

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s UNITED STATES OF AMERICA NUCLEAR RFGULATORY COMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

)

SUFFOLK COUNTY MOTION TO COMPEL PRODUCTION OF DOCUMENTS IDENTIFIED BY FEMA ON MAY 14 AND 15 Pursuant to the agreed upon schedule discussed by the Board and parties on May 9, 1984, and pursuant to 10 C.F.R.

$ 2.740(f), Suffolk County hereby moves the Board to issue an order compelling FEMA to produce the thirty seven documents identified, but withheld from production, on pages 5-8 of FEMA's Response to Suffolk County Request for Production of Docurents (hereinafter " FEMA Response"). The bases for this Motion are set forth in parts B-F below.

A. FEMA's Response is Still Not Complete

..= = preliminary matter, the County notes that it is fil-ing this Motion on May 17, in order to obtain a Board ruling on FEMA's withholding of documents. The County's filing, however, 7 .

e is of necessity incomplete as a resdit of FEMA's inability or unwillingness to provide the information upon which the County's Motion is necessarily premised on a timely basis as contemplated by the May 9 agreement among the parties which was adopted by the Board. Thus, despite the requirement that "on Monday, May 14th, FEMA will file a list of all the documents which meet the [ County's document) requests and a list of its objections to the request for documents," (Tr. 8752 (Laurenson)), on May 14 the County received only pages 1-7 of the FEMA Response. Those pages did not contain a complete listing of the responsive documents, and they contained no l

objections or bases for withholding any documents. The County did not receive the full eleven page document entitled " FEMA Response to Suffolk County Request for Producticn of Documents" until shortly before noon on May 15.

In addition, at approximately 4:00 p.m. on May 15, the County received a letter from FEMA Counsel (Attachment A hereto) which purportedly " supplements" the FEMA Response. The letter states that documents responsive to the County's document request -- apparently in addition to those identified in the FEMA Response -- have been " requested" from RAC members,  !

but apparently not yet received by FEMA counsel or included in the listing contained in the FEMA Response. The May 15 letter 1

- 2-

e also states that two or three additional items that may be responsive" to the request "have been forwarded" to FEMA counsel but have not yet been received. As of May 17, 1984, the County has still not received a complete response to its April 20 cocument request.1/

Thus, although the entire schedule leading to a Board ruling by May 18 was premised on the representation of FEMA counsel that he could file a complete response by May 14 and provide by May 17 all the withheld documents to the Board (with duplicates available for production to the County pending the Board's ruling), it is clear that a complete response has yet to be provided by FEMA: FEMA counsel has not even located, much less received or reviewed all the responsive documents.

The County submits that in light of FEMA's continuing non-compliance with the timetables set in this proceeding, and the scheduled depositions of the FEMA witnesses during the week of hay 21, the Board should order FEMA to turn over all 1/ Furthermore, despite the representation at page 4 of the FEMA Response, as of May 15, 1984, the 8 documents listed on pages 4-5 of the FEMA Response had not yet been provid-ed to the County. They were received after noon on May

16. Similarly, despite the representations in the May 15, j 1984 letter from Mr. Glass, the FEMA employees' Antici-i pate'd Workload Forms relating to Shoreham, were also not provided to the County until- M:y 16, 1984.

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1 remaining responsive documents to the County, regardless of whether FEMA objects to their production, no later than Monday, f

May 20.

The County's Motion addressas only the 37 documents iden-tified in the FEMA Response, since the remaining documents have not yet been identified by FEMA counsel.

B. FEMA has Failed to Satisfy the Threshhold Standards for a Proper Assertion of the Executive Privilege In its November 1, 1983 Memorandum and Order Ruling on t

Suffolk County Motion to Compel FEMA to Produce Documents (hereinafter, " November Order") which is relied upon by FEMA at page 8 of its Response, this Board identified four requirements for properly invoking the executive privilege. See November Order at 2. FEMA has not satisfied at least two of those re-quirements.

The County received late on May 14 an unexecuted Affidavit drafted for the signature of Louis O. Guiffrida, Director of FEMA. The County assumes that the Board will have in hand an executed copy of that Affidavit before it makes any ruling up-holding any of the FEMA privilege claims. The County also as-sumes that copies of'the documents which have been identlfled l

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and withheld will be provided for the Board's in camera 1

inspection by May 17. Thus, the County does not at this time contest FEMA's satisfaction of the first and fourth require-ments set forth on page 2 of the Board's November Order. The documents submitted by FEMA, however, do not satisfy either the second or third requirements identified by the Board, and this failure alone requires the granting of the County's motion to compel .

The two requirements in question are:

, (2) the claim must specifically describe and designate the documents sought to be withheld; (3) the claim must state the precise reasons for preserving the confidentiality of the documents November Order at 2.

Neither the FEMA Response nor the Guiffrida Affidavit spe-cifically describes all the documents sought to be withheld, even limiting those documents to the 37 listed in the FEMA Re-sponse. First, at least four of those documents (items 20, 21, 22 and 23) have not even been seen by either FEMA Counsel (see FEMA Response at 8-9) or by Mr. Guiffrida (see Affidavit at paragraph 6.) Although these documents are described as

" individual personal notes," clearly, neither FEMA Counsel nor 1

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Mr. Guiffrida have any basis for assuming such description is accurate. More importantly, the description " personal notes" does not constitute a meaningful or useful description of the documents at issue that could enable either the Board, or

, Suffolk County, to evaluate the applicability of the asserted privilege. " Personal notes" clearly could comprise purely fac-tual statements to which the asserted privilege does not apply.

The County cannot file an informed response to the FEMA privilege claim, nor can this Board rule, based on the limited so-called " description" of these documents that has been pro-vided by FEMA.

, This deficiency also applies to most of the other documents identified and withheld by FEMA. The FEMA designa-tions of the following items fail to "specifically describe" -

them:

Items 1-19 (each described only as " comments") .

Item 27 (" Transmittal Memorandum")

Item 28 (" Memorandum," "

Subject:

Shoreham Plan and Review")

I Items 29 and 30 (" Discussion Points" and "Q's and A's" "on the FEMA finding of 3/15/84 for Shoreham")

Item 31 (" annotated notes")

-- Item 32 (" Notes and Option Paper on Strategies for Handling Shnreham Off=ite Emergency Preparedness Problem")

,..n., - , . , . - ~ _ . , . , - . . . , . -, , . - ,

s Item 33 (" Memorandum" "

Subject:

Federal Emergency Management Agency Support for Nuclear Regulatory Commission Licensing of Shoreham Nuclear Station")

b Item 34 (" Memorandum" "

Subject:

Legal Issues Iden-tified During the RAC Rt. view of LILCO Trancition Plan for Shoreham")

Item 37 ("pages of a flip chart" of RAC " comments")

The FEMA Response and Guiffrida Affidavit also fail to

, state " precise reasons for preserving the confidentiality of the documents" being withheld. The only " reasons" contained in the FEMA Response are the following unexplained or conclusory assertions:

' It is the position of [ FEMA] that the abeve thirty-seven (37) documents are privileged, that they are subject to the protection of the executive privilege (sic). (At 8.)

FEMA objects to the discovery of any advis-ory memoranda, predecisional deliberations related to the RAC review, or the input of the individual RAC members to the final

, FEMA RAC report. (At 9.)

, e *

• i i

It is obvious . . . that [Suffolk County 1

is] seeking to ascertain the predecisional thoughts and opinions of the individual RAC 4 members. Executive privilege is meant to protect these very thought processes, ad-visory opinion recommendations and deliber-6 Lion.. 'At 9.)

l . u - _. . _ . _ _ . ._.

e 4

• *

• i

, These documents fall squarely within the scope of executive privilege . . . . (At 10.)

These assertions are insufficient to support a claim of privilege. First, they are not related in any way to the actual documents at issue (e.g., why are memoranda concerning

" FEMA Support for NRC Licensing of Shoreham," or " legal issues identified in the RAC' Review," or RAC comments on Revision 1 (Items 33, 34 and 37) subject to executive privilege?) Second, there is no

• reason" given to support the asserted conclusion that individuals' thoughts and opinions -- which are supposedly in the notes and comments of RAC members -- are covered by ex-1 ecutive privilege. Clearly, every document containing written j words also reflects some individual's thoughts. That alone does not make a document privileged, particularly when the individual is a witness or when that individual's thoughts and i opinions have been submitted into evidence, which is the case 1

i here. Third, even if some of the documents at one point may have been subject to a privilege of some sort, the FEMA Re-sponse is totally silent concerning any need to preserve the confidentiality of any of the documents, given the fact that FEMA is a party to this proceeding, has submitted testimony by

..veral of the authors of documents being withheld, and has

.-a.

submitted into evidence, and its witnesses rely upon the very report which is the subject of the documents being withheld.

As we explain further in part D below, FEMA has not stated any basis for a continuing privilege -- if one ever applied -- with respect to the documents at issue.

r The Guiffrida Affidavit is similarly deficient. Although it does assert that production of the documents "would be con-trary to public interest," "will have a chilling effect on this agency to receive in written format the comments, concerns and opinions of our staff," (sic) and "will also adversely affect the ability of our RAC Chairman to receive in written format the comments, concerns and opinions of" the RAC members, there is again no stated relationship between these conclusions and the particular documents at issue. There is also no recogni-tion, much less discussion, of the fact that many of these documents have been authored by individuals designated as witnesses by PEMA, and that they all involve a document -- the RAC Report -- that FEMA will be submitting into evidence in this proceeding.

Finally, the October 12, 1983 FEMA Response to Suffolk County Motion to Compel Discovery which is referenced in the FEMA Response (at 8), is as incomprehensible and inapposite now

s as it was in October. In addition, it of course fails to address any of the documents now at issue. (The matters at issue in October primarily involved FEMA's internal policy and proposed response to the NRC's requests for a review of the LILCO Plan.) It provides no additional information which could support a claim of privilege.

In short, FEMA has failed to make even the threshhold showings necessary to support a claim of privilege and need for confidentiality with respect to the 37 documents it has identi-fied and withheld.

l I

C. The Executive Privilege Does Not Apply to the Documents at Issue Although for the reasons noted above it is difficult to discuss in any detail the documents being withheld because the descriptions provided by FEMA are so uninformative, it nonetheless seems clear that given their subject matter, most if not all of them, are not subject to the executive privilege.

It is well established that the privilege "does not attach to purely factual communications, or to severable factual portions of communications, the disclosure of which would not compromise military or state secrets." Lono Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-82-82, lA NFC

t

.114, 1164 (1982), citing EPA v. Mink, 410 U.S. 73 at 87-88.

pee also Brand v. Phillips Petroleum Co., 628 F.2d 873 (5th Cir. 1981), cited in the November Order, at 7, and this Board's Memorandum and Order Ruling Upon LILCO's Motion to Compel Pro-duction of Documents and Objections of Governor Mario Cuomo, dated March 6, 1994 (hereinafter " March Order") at 7. The documents at issue all relate to the RAC Review or the RAC Report which is attached to the testimony of the FEMA  ;

I witnesses. That review, and the resulting report, consists of l purely factual material -- that is, whether or not the LILCO Plan contains or does not contain various elements identified in NUREG 0654. Indeed, many of the documents being withheld l

i appear to be nothing more than the particular findings of fact by RAC members -- labeled " comments" in the FEMA document listing -- that eventually became the RAC Report that is relied upon by the FEMA witnesses in their testimony. Such factual material is not subject to executive privilege.

Furthermore, the executive' privilege is designed to protect the internal policy formulation or decision-making process in a governmental agency. Despite the incantation of I

the words " pre-decisional," " thought processes," and "delibera-tions" in the FEMA Response and the Guiffrida Affidavit, there

(*

j t

i= no ind.ication either in those documents, or in the

~r., , "--

e description of the withheld documents, that the findings or notes of RAC members, drafts of the RAC Report, or the identi-i fied memoranda have anything to do with FEMA policy or 1

decisions or deliberations about FEMA policies.

As stated in the FEMA Response, the RAC members engaged in "a technical review" of the LILCO Plan. FEMA Response at 9.

Their purpose was to make, findings of fact, not set FEMA policy or make decisions for that agency. Indeed, the RAC members except the Chairman, are not even FEMA employees. The

" comments" of the RAC members are technical factual findings, having nothing to do with any internal FEMA policy formulation or decisionmaking. They are not protected by the executive privilege. Unlike the documents involved in the Fall 1983 dis-covery dispute, which at least arguably dealt with internal FEMA policy and decision making deliberations (see November Order at 9),2/ the documents at issue here appear to deal with nothing but the technical findings of the RAC concerning the contents of the LILCO Plan. FEMA has failed to demonstrate that any of the documents deal with the type of nonfactual, policy, or decision-making matters that the executive privilege is designed to protect.

2/ At issue in November were items such as draft memoranda and correspondence apparently setting forth the agency's policy, position, or intended response to the request from NRC that certain actions be undertaken.

12 -

s D. Even if a Privilege at One Time Attached to the Documents, the Privilege Has Been Waived Even assuming for the sake of argument that the executive privilege could have attached at one tima te some of the documents at issue, it is clear that by its own subsequent actions FEMA has waived such privilege. FEMA intends to intro-duce the RAC Report into evidence in this proceeding.

The FEMA witnesses have attached the report to their prefiled testimony.

In addition, those witnesses state throughout their testimony that their opinions and conclusions concerning the LILCO Plan are based upon the RAC findi.ngs. In add'ition, at least three of the FEMA witnesses (Messrs. Keller, Baldwin, and Kowieski) participated in the RAC review, and authored several of the documents being withheld.

Clearly, the County, the Board, and the other parties are entitled to probe the bases for the opinions and conclusions stated by the FEMA witnesses in their testimony, both for im-peachment purposes and otherwise to develop a full and complete record. See the March Order at 7-8. Since they FEMA witnesses rely on the findings of the RAC, inquiry into the bases of the RAC findings is clearly not only proper, but essential. The FEMA position -- that no ene ic permitted to see or inquire 13 -

i into anything other than the bare conclusions stated in the i

final RAC Report --

flies in the face of logic as well as the

) rules of procedure.

FEMA, in effect, attempts to use the executive privilege to bar any incuiry into the bases for the opinions of its witnesses. Clearly, once FEMA submits testimony, and relies 1

uoon factual findinos in that testimony, it has waived any pre-existing rights to keep confidential the processes or means j by which those findings and the conclusions of its witnesses were developed. See e.g., Houston Light and Power Co. (South Texas Project, Units 1 and 2), LBP-79-30, 10 NRC 594, 595 i

(1979). See also, March Order at 8. Given the circumstances of this case, to permit FEMA to abuse the executive privilege j

i as it attempts to do, would be improper.

Sustaining FEMA's executive privilege claim with respect to the documents now at issue would accord a special "untouch-able" status to the FEMA witnesses; such status has not been accorded any other parties' witnesses in this proceeding --

the parties and the Board have had or will have the opportunity to probe the bases for the opinions of every other witness. It would also improperly deprive all parties of their right under 10 C.F.R % 2.743(a) to conduct "such cross-examination as may 14 -

1. ++,-.wp . ,- - ,. ,# , .9.. -_ ,

e be required for full and true disclosure of the facts."

Finally, it would violate 10 CFR $ 50.47(a)(2) because the  !

parties would be unable to rebut the FEMA findings, having been barred from even determining the b'ases for those findings.

Thus, even if a privilege at one time may have attached to

some of the documents at issue, FEMA's subsequent reliance upon a the RAC review in the testimony submitted in this proceeding, constitutes a waiver of the privilege.

1 1

j E. In Any Event, the Alleged " Chilling Effect" i

of Releasing the Documents is Outweighed i Here by the County's Need to Obtain the Documents i This Board has stated in both its November and March i

4 Orders that a balancing test must be applied to determine i

whether the qualified executive privilege is overcome by the need of a litigant for the particular documents at issue. See November Order at 10, and March Order at 3-5. In this case, as 1

demonstrated in parts B and C above, FEMA has failed to i

document or even explain the basis for its " chilling effect" assertion with respect to the documents at issue. Those documents appear to contain only factual, technical, non-policy material having nothing to do with any internal FEMA decision-making. On the other. hand, the County's need for these documents is substantial and compelling.

)

i As noted in part D above, the documents at issue are the factual findings which underlie and form the basis for the RAC findings upon which the FEMA witnesses rely for the opinions and conclusions stated in their testimony. Without access to these documents, the County would be unable to cross-examine the FEMA witnesses, to probe, challenge, or impeach their con-clusions, or otherwise to present en the record of this pro-ceeding all the relevant facts pertaining to the opinions of the FEMA witnesses. As noted in part D above, to deny the County access to these documents would constitute a violation of the County's rights under 10 C.F.R. $$2.743(a) and .

50.47(a)(2) and would, in effect, accord special preferential treatment to one party's witnesses by shielding those witnesses from any meaningful inquiry or challenge.

Indeed, the County's need for these FEMA documents is even more substantial than that of LILCO with respect to the State of New York documents which were the subject of the Board's March Order. There, the Board held that LILCO's need for documents concerning a so-called " review" by certain New York employees (who were not witnesses in this proceeding), of a draft plan different from the LILCO Plan at issue in this pro-ceeding, outweighed the State's interest in confidentiality.

The Board stated:

I

e At the present time, New York has become an active partic-ipant in opposition to LILCO.

New York expects to present witnesses who will testify concerning deficiencies or inadequacies in LILCO's current plan. We, therefore, conclude that fairness dictates that LILCO should be given access to prior assessments of LILCO's earlier evacuation plan in order to determine whether it can impeach New York's witnesses with prior in-consistent statements about the same or similar provisions of the plan. Obviously this information is not available to LILCO through any other means. We find that LILCO has a compelling need to see these documents. On the other hand, New York'-

fear of a " chilling effect on the abilit /

of the DPC to receive written comments, concerns, and opinions of its staff" is less compelling. . . . Frankly, New York is not entitled to have its cake and to eat it too. As an active participant in the proceeding, its interests in preserving secrecy are outweighed by LILCO's need to have these documents to effectively cross-examine New York's witnesses.

March Order at 7-8 (emphasis added).

The documents at issue here involve: (1) the very witnesses chosen by FEMA to submit testimony, (2) the very Plan at issue in this proceeding, (3) the actual RAC review and findings which are attached to and are a part of the testimony to be submitted into evidence by FEMA, (4) the findings upon which the FEMA witnesses expressly rely for the opinions and conclusions contained in their testimony, and (5) the " FEMA findings and determinations" which are a rebuttable presumption in this procc:*ing. Thus, the nexus between the FEMA documents

e and the natters at issue, as well as the County's need for those documents, are substantially greater than that presented by LILOO in March. The County submits that, assuming any of the FEMA documents are properly subject to a claim of privilege, the Board's March Order, which required New York to turn over privileged documents to LILCO, is controlling here.

Accordingly, the County's Motion to Compel should be granted.

F. FEMA's Other Arguments are Without Basis The FEMA Response contains two assertions which require a i

response and correction. 1 First, the FEMA Response states at page 9 "The' County's document request to FEMA makes absolutely no showing of any 4

circumstances requiring disclosure of the reques.ed documents."

Clearly, no- such " showing" is required in a Request for Produc-tion of Documents. See 10 CFR { 2.741. This motion sets forth in as much detail as possible, given the limited information provided by FEMA, the circumstances which require disclosure of the documents.

Second, FEMA asserts on page 10 of its Response that the requested documents "are irrelevant and will not lead to the production of ad=iccible relevant evidence." The apparent l l 1

I

e basis for this assertion is the argument that: "the FEMA RAC review is not being litigated in this proceeding and the inputs of the various members of the RAC Committee have absolutely no probative value. The RAC submitted its final report which reflects the collegial judgment of the RAC. " FEMA Response at 10.

This FEMA argument ignores the applicable relevancy standard for discovery, which is whether "the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 10 CFR $ 2.740(b)(1). FEMA Counsel's opinion that the findings of individual RAC members, Which form the basis for the " collegial" RAC findings "have absolutely no probative value" also ignores reality. As the very next sentence of the FEMA Response acknowledges, the RAC findings are included in FEMA's testimony on the contentions in this proceeding. The FEMA witnesses also expressly rely on the RAC i findings in their testimony. FEMA counsel's suggestion that documents relating to the findings Which constitute the bases for his own witnesses' testimony are irrelevant, is inexplica-ble and s'hould be rejected out of hand. The requested discov-ery clearly is reasonably calculated to lead to the discovery of admissible evidence.

I

s conclusion For the foregoing reasons, the County's Motion to Compel ,

should be granted.

Respectfully submitted, Martin Bradley Ashare 1

Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788

^

f.21' Herbert H. Brown Lawrehce Coe Lan er

. . Karla J. Letsche KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS

, 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County Dated: May 17, 1984 l

i e

a 4

Federal Emergency Management Agency

@ Region!! 26 Federal Plaza May 15,1984 New York, New York 10278 Karla k esche. Esq.

3 Kirkoattick, lockhart, Mili Cwistopher & Phillips 1900 M Street, N.W.

8th Floor Washington, D.C. 20036

Dear Ms. k tsche:

This letter supplanents our response to Suffolk County's Discovery 4 Request. FE% has identified all itens within the Regional and J

Headquarters office that is responsive to your request. In addition l we have requested information that may be in the offices of the i Regional Assistance raunittee nembers.

i Attached please find a Briefing Sheet supplied by'the Environnental

Protection Agency whicn is responsive to the third iten in your request.

j We understand that two or three additional items that may be t responsive to your request have been forwarded to our office from j the Depart:nent of Transportation RAC meuber but we have not yet i

received this information.

I e also enclosing copies of a F!!MA suployee's Anticipated Workload Forms as they relate to Shoreh m activities.

if you have any further questions please do not hesitate to contact

this office.

Very truly yours,

[nN b.

Stewart M. Glass '

Regional Counsel k

i

. . mm 4 a

e e e ATTACHMENT 6 o

e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges James A. Laurenson, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon

)

In the Matter of ) Docket No. 50-322-OL 4

)

LONG ISLAND LIGHTING COMPANY ) (Emergency Planning Proceeding)

)

(Shoreham Nuclear Power Station, )

Unit 1) ) May 18, 1984

) 3:00 p.m., E.D.T.

MEMORANDUM AND ORDER RULING ON Sur FOLK COUNTY MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY FEMA We have before us today a discovery dispute between Suffolk County and FEMA. While we have entertained frequent discussions concerning various such disputes between the County and FEMA in' the past, the current dispute comenced on May 8 when Suffolk County filed a Motion to Compel Response to Request for Production of Documents by FEMA. The County's request recited the facts that the County served on FEMA a Request for Production of Documents on April 23 and that a prompt response was necessary in order to prepare for depositions next week and cross-examination of FEMA witnesses at the hearing beginning on May 29.

The County asked us to require FEMA'to respond to the request for documents by May 10. ~

[ We held a discussion with all parties on May 9 during the hearing in Hauppauge, NY. At that time, FEMA indicated that it intended to 1

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_nk -

sn . E f ) V" Y '

i

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assert executive privilege and to withhold numerous documents. The Board established a schedule for the filing of the list of documents in question on May 14 and subsequent filing of briefs, and h camera submission of the documents. At that time we notified all parties that we would announce our ruling at a telephe"e conference at 3:00 p.m. on May 18, 1984. The FEMA list was served upon the Board on May 15 and the County asserts that it did not receive the entire list until then. The FEMA list identif'ad 37 documents as responsive to the Suffolk County request for documents but FEMA claimed " executive privilege" for all 37 listed documents. FEMA characterizes these documents as " advisory memoranda, predecisional deliberations related to the RAC Review, or the input of the individual RAC members to the Final FEMA Report."

(FEMA's Response to Suffolk County Request for Production of Documents at 9.)

FEMA goes on to object to the request to provide what it says are "the predecisional thoughts and opinions of the individual RAC members."

FEMA's brief goes on to state that "the FEMA RAC Review is not being litigated in this proceeding." (Pg. 10.)

Yesterday, FEMA filed i_n n camera copies of 35 of 37 documents in question. At the same time, FEMA submitted an Affidavit of Gen. Louis Giuffrida, Director of FEMA, listing end describing the 37 documents in question end stet 4ag that he had examined the documents (except 4 which were delivered to us still sealed) and that he concluded that the production of these documents would be contrary to the public interest.

He further asserted that "the production of these documents will have a chilling effect on this agency's ability to receive in written format

_ = _ - -

I '

3 the comments, concerns and opinions of our staff." He also stated that 1 it will adversely affect the ability of the RAC Chairman to receive

written advice from representatives of the RAC.

o Yesterday, Suffolk County filed its Motion and Brief to Compel l Production of Documents. The County first complains about FEMA's response not being complete because additional documents may be identified. The County's arguments in support of the disclosure of all documents in question are as follows: (1) FEMA failed to satisfy the threshold standards for a proper assertion of executive privilege because the documents are not specifically described and there is no precise reason given by FEMA for preserving the confidentiality of the documents; (2) the executive privilege does not apply to these documents at all because they all consist of purely factual material concerning the RAC Review and do not concern FEMA policy; (3) even if they were privileged at one time, the privilege has been waived because FEMA intends to offer the RAC Report in evidence; and (4) the County claims that any chilling effect of releasing the documents is outweighed by the County's need to obtain the documents.

NRC Staff and LILCO both support FEMA's response and assertion of 4

l executive privilege. The LILCO brief in support of FEMA makes the argument that the FEMA RAC is analocous to the NRC ACRS and that the deliberations and advisory opinions of ACRS are protected by executive I

privilege.

No party-has challenged the ruling principles of law which we have applied to assertions of executive privilege in our November 1,1983 I

l

_ - - - _ _ _ _ _ = _ _ _ __ _ - - . _ _ . , _ _ _

i i

l 4

I i

(Attachment A hereto) and March 6, 1984 (Attachment B hereto) Orders ruling on motions to compel production of documents. Therefore, we shall continue to assume that our legal analysis of the doctrine of executive privilege is correct. To recap those orders, we set forth specific procedural requirements for the assertion of the privilege.

Furthemore, we have characterized the privilege, once it is established, as a qualified one. Upon a prima facie showing of executive privilege, the Board must employ a balancing test to determine whether to pierce the qualified privilege. (See pages 5-7, Attachment A, and pages 3-5, Attachment B.) Factors to be weighed and considered in favor of piercing the privilege and releasing the documents are the following: (1) importance of the documents to the Suffolk County case;-

(2) the unavailability elsewhere of this infomation; (3) the philosophy of broad discovery under NRC rules of procedure; (4) our prior decision in the dispute between LILCO and New York State where we found that LILCO's need for the documents outweighed New York's claim of harm resulting from disclosure; and (5) the fact that in most cases here, the authors of the documents in question are not subordinates of the persons to whom the documents are addressed and therefore the possibility of any

" chilling effect" of disclosure is lessened.

On the .other side of this scale are'the following factors which weigh against disclosure: (1) future RAC participants may alter their

• advice or input if they know that their comments may become public; (2) disclosure will curtail free expression, integrity and independence of those responsible; (3) the relevant information concerning the bases for

i e

1 5

the FEMA RAC findings can be adequately tested through cross-examination of the four FEMA witnesses at the hearing and the disclosure of the drafts and early discussions leading to the final report are not needed by Suffolk County; (4) the documents requested are not relevant to the issues in this proceeding, i.e., the admitted contentions rather than the RAC Review of the LILCO Plan; (5) what one member of the RAC may have thought about the Plan under review is not relevant or probative of I

anything; and (6) our November 1, 1983 Order essentially upheld the executive privilege-and denied most Suffolk County requests to produce drafts of similar documents.

i ANALYSIS Part 351 of the Federal regulations pursuant to Title 44 provides for the establishment of RACs and describes their duties. 44 C.F.R. 5 351.10(b) provides for the establishment of Regional Assistance Committees in each of the 10 standard Federal regions. That section goes on to list the makeup of the RACs and concludes by stating: "The FEMA Chairperson of the RACs will provide guidance and orientation to other agency members to assist them in carrying out their functions."

The function of the RAC is described in 44 C.F.R. I 351.11(b) to include I

the review of state and local radiological emergency plans and to observe exercises to evaluate the adequacy of such plans. The Federal agency members are charged with the responsibility of becoming knowledgeable about Federal planning and guidance in this area and where their agency ch assist in improving the preparedness.

i 6

Turning first to the procedural objections of the County, we find that FEMA's submissions consisting of its Response and Affidavit of Louis 0. Giuffrida adequately deceribe and designate the documents soug'ht to be withheld. Likewise, these submissions by FEMA contain the precise reasons for preserving the confidentiality, i.e., the chilling >

effect on the agency's ability to receive written comments, concerns, and opinions from its staff and the chilling effect on the RAC Chairman's ability to receive such material from members of the RAC.

Therefore, we reject this argument .of Suffolk County.

Suffolk County next asserts that these documents are not privileged because they all relate to the RAC Review or the RAC Report which is attached to the FEMA testimony. Suffolk County asserts that this material consists of purely factual material. We disagree. While there are obviously facts contained in the documents, the thrust of these documents is that they contain evaulations, advisory opinions, recommendations and deliberations which fall within " executive privilege." We also find that the FEMA findings herein, as adopted from the RAC Report, involve the decision making process of government which is protected by executive privilege. Therefore, we find that FEMA has made a prima facie showing of executive privilege.

10 C.F.R. i 50.47(a)(1) states that no license may be issued without an NRC finding that offsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

7 j

i 10 C.F.R. I 50.47(a)(2) states that the NRC will base its finding under 10 C.F.R. I 50.47(a)(1) on a review of the FEMA findings and determinations as to whether state and local emergency plans (in this case the LILCO Transition Plan) are adequate and capable of being implemented.

The FEMA RAC Review submitted to NRC on March 15, 1984, constitutes the FEMA. findings and determinations as specified in 10 C.F.R. I 50.47(a)(2). The RAC Review was an evaluation of Revision 3 of the LILCO Transition Plan against each planning element specified in NUREG-0654 AlmostalloftheIntervenors'contentionsieferto specific sections of NUREG-0654 and allege deficiencies in the Plan.

Hence, the FEMA findings of the RAC Committee are directly relevant to the issues in controversy in this licensing hearing. In general, the parties should be permitted to inquire into those findings and the procedures which were followed to arrive at the FEMA concensus. Only by probing those findings and determinations will the parties and Board be able to assess the weight to be given to those findings and determinations in our review under 10 C.F.R. i 50.47(a)(2). Thereafter, we will consider and assess all relevant and probative eviden'ce in ruling on the question of the riasonable assurance finding to be made by the NP.C ;:ur:uant to 10 C.F.R. I 50.47(a)(1).

This brings us to the balancing test to detemine whether the qualified privilege should be pierced in this instance. On balancing the competing interests, we find that, as to most documents, the County's need to have these documents is greater than the harm or A + une ea M

f t

-8 I " chilling effect" which such release will have on decision making in the future. We are most impressed with the fact that the FEMA RAC Report now constitutes FEMA's findings for purposes of 10 C.F.R. i 50.47. In this regard, the RAC is clearly distinguish'able from ACRS. Moreover, three members of the RAC will testify for FEMA. The FEMA testimony

incorporates numerous references to the RAC Report. Under these circumstances, it would be unfair to deny the County access to the underlying documents and processes by which the RAC Report achieved its final form. By this holding, we do not mean to imply that the comments .

l l of any individual RAC member miy be relevant or admissible. What we are saying is' that the County should be able to discover the underlying documents that went into the formulation of the publicly disclosed RAC

, Report because the information sought appears reasonably calculated to lead to the discovery of admissible evidence. We are aware that there

might be some " chilling effect" as a result of this decision, but we i

think it will be less than those cases where we have previously withheld discovery. As to the RAC members, most of them are not employees or subordinates of FEMA. Presumably, they submit their independent opinions concerning an evaluation of an emergency preparedness plan. We cannot see why those opinions would be different even if it were known l

that such opinien: would bec:me public. As to the opinions and advice-of FEMA staff employees, we are only authorizing release of the draft documents concerning the RAC Review and RAC Report. We find that the other internal advice giving documents of FEMA staff should not be disclosed consistent with our November 1,1983 and March 6,1984 Orders.

i

g _ . _ _ _ _ . . _

This litigation concerns the contentions of Suffolk County. Almost all of the contentions are founded upon the County's claim that the LILCO Transition Plan fails to comply with the regulations and NUREG-06b4.

The RAC Report evaluates the LILCO Transition Plan against the' criteria in NUREG-0654. FEMA intends to present testimony of three RAC members 4

on May 29, in support of its findings in the RAC Report. Thus, we find 1

that the documents which underlie the RAC Report are centrally important to the County's case in asserting that the LILC0 Transition Plan does not comply with NUREG-0654. We do not find that cross-examination alone, without access to these documents, will be equivalent.

We have reviewed each of the 35 documents submitted to us in camera by FEMA. We incorporate FEMA's Response to Suffolk County's Request for Production of Documents, dated May 14, 1984, consisting of 11 pages and attached hereto as Attachment C. We order as follows: On page 5 through page 7 of Attachment C, the documents numbered 1-23 shall be released as underlying documents, authored by members of the RAC, which went into the process of formulating the final RAC Report. The request to produce Document Nos. 1-23 is GRANTED. (Items 2 and 23 were not submitted to us.)

As to Document Nos. 24, 27, and 28 on page 7 of Attachment C, FEMA asserts that the final drafts of the letter and memes have been released to Suffolk County. That appears to be true as to Nos. 24 and 28, but we do not see No. 27 on the list of documents released to Suffolk County.

In any event, the Board finds that the final drafts of each of these 3 should be released but that there is no showing of need by the County

a 10 ---

l for the release of earlier drafts. The request to produce Document Nos.

24, 27, and 28 is DENIED.

Document Nos. 25, 26, 31, 34-37 on pages 7 and 8 of Attachment C are drafts of various documents, documents with handwritten notes, and a compilation of RAC members' coitunents. For the reasons stated in connection with Document Nos.1-23, we find that these documents should be released. As to Document Nos. 25, 26, 31, 34-37, the request to produce is GRANTED. (Item 35 consists of three drafts not two drafts as stated.)

Document Nos. 29 and 30 on page 7 of Attachment C are internal working papers concerning preparation for a press conference which was never held. We find that the County has established no need for these documents and the request to produce Document Nos. 29 and 30 is DENIED.

Document No. 32 on page 8 of Attachment C is an internal FEMA option paper concerning strategies for dealing with the Shoreham offsite emergency preparedness problem. We have reviewed this document and it is not relevant to the RAC Review or Report. We find that the " chilling effect" of releasing this document would outweigh any potential need of the County to see it. Therefore, the request to produce Document No. 32 is DENIED.

Document No. 33 on page 8 of Attachment C is a draft of 0 memorandum, the final draft of which FEMA indicates has been released to Suffolk County. This draft shall not be released for the same reasons stated in connection with Document Nos. 24, 27 and 28. The request to produce number Document No. 33 is DENIED.

s

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11 Based upon this Order, we believe that FEMA and Suffolk County should be able to resolve their differences about additional RAC related documents which may be subsequently obtained by FEMA.

IT IS SO ORDERED.

ATOMIC SAFETY AND LICENSING BOARD J

w 0- w*

5 A. LAUREN50K, Chaiman dm nistrative Law Judge M

D$ JERRY R. KLINE Afi /

FREDERICK'd. 5 HUN 7 ^

W*

Q&

Bethesda, Maryland .'

I

, , ATTACHf1ENT A 8

i i  !

i

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UNITED STATES OF AMERICA 0%$" *EU NUCLEAR REGULATORY COMMISSION I ATOMIC SAFETY AND LICENSING BOARD l Before Administrative Judges

" ^

r James A. Laurenson, Chairman '

! Dr. Jerry R. Kline Mr. Frederick J. Shen SERVED NOV 31983

In the Matter of Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY (Emergency Planning Proceeding)

! (Shoreham Nuclear Power Station, j Unit 1) November 1,1983 i

4

! MEMORANDUM AND ORDER RULING ON SUFFOLK COUNTY MOTION TO COMPEL FEMA TO PRODUCE DOCUMENT 5

)

I j I. Procedural History l On September 19, 1983, Suffolk County (the County) filed a " Motion I

to Compel Discovery frore FEMA (Federal Emergency Management Agency)."

Some matters raised in that motion have been settled by the carties. ,

However, as relevant here, the County requested discovery of the following: (1) all drafts of the Memorandum dated June 23, 1983 from

( Richard W. Krimm, Assistant Associate Director of FEMA to Edward L.

l Jordan of the NRC; (2) all drafts of a letter dated August 29,1983 from l Jeffrey S. Bragg, Executive Deputy Director of FEMA to William J.

Dircks, Executive Director of Operations of NRC; and (3) written instructions from Gary D. Johnson, Executive Officer of FEMA to Fred l Sharrocks, Senior Progran Manager at FEMA regarding preparation of a '

\ .

i ff A a L M t t Ch -

V'

• D ) A& f dh f

s i

i t

draft FEMA response to the July 22, 1983 letter from William J. Dircks l

{ of the NRC.

On September 21, 1983, FEMA filed a response to the County's motion wherein FEMA asserted that the above listed documents were not subject i

to discovery because of " executive privilege." FEMA cited no authority in support of its position.

On September 26, 1983, we held a Discovery Conference in 1

j Washington, D. C. Efforts to settle this discovery dispute between the i l County and FEMA were unavailing. The Board notified FEMA that it had i

j not properly invoked the claim of " executive privilege." However, FEMA

)

j was given a period of 15 days to perfect the claim of privilege by ,

completing the following: (1) the claim must be asserted by the head of '

f the agency, i.e., Louis 0. Giuffrida, Director; (2) the claim must j specifically describe and designate the documents sought to be withheld; i

j (3) the claim must state the precise reasons for preserving the j

confidentialityofthedocuments;and(4)thedocumentsforwhich i executive privilege was claimed must be submitted under seal for the Board's ,1,3 camera review if that became necessary. The Board invited j the parties' attention to U.S. v. Capitol Service. Inc. , 89 F.R.D. 578 -

4 (E.D. Wis, 1981). The Board also informed NRC 5taff that its terse concurrence with FEMA's position was " wholly insufficient." (T.590).  ;

All parties were given a period of one week to respond to FEMA's claim

{ of privilege. (T. 602).

1 j On October 12, 1983 FEMA submitted another response to the

County's motion to compel discovery. Of the three disputed' items listed

e

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3 in the County's September 19, 1983 motion, FEMA asserted the claim of executive privilege as to items 1 and 2. FEMA did not address item 3.

In addition to items 1 and 2, FEMA also asserted a claim of executive privilege for the following documents:

A. Those sections of a Briefing Paper on Shoreham prepared by the staff of Region II for Frank P.

Petrone, Regional Director detailing his staffs identification of issues and recomenda-tions.

B. Mencrandum for Richard W. Krim from Gary Johnson, Executive Officer in the Office of Natural and Technological Hazards dated June 7, 1983

concerning the response of FEMA to the NRC request of June 1, 1983.

C. Draft letter, never mailed, prepared for signature of Louis 0. Giuffrida by the staff of the office of Natural and Technological Hazards in anticipation of -

l a request by NRC for a FEMA review of the LILCO

! Transition Plan.

D. Portions of Status Report on Shoreham Nuclear Power l Plant dealing with opinions of staff.

! E. Analysis of a hypothetical question concerning LILCO, j New York Scate and Suffolk County response to an j

accident ist the Shoreham Nuclear Power Station.

The FENA claim of privilege was made by its Director, Louis 0, i

Giuffrida. His affidavit states that he personally examined the documents in controversy and concluded that their production would be contrary to the public interest. He asserted that the seven categories of documents " consist of intra-departmental memoranda and comunications containing opinions, recomendations and deliberations pertaining to decisions" subsequently made by FEMA. He went on to say that the ,

4 disclosure of these documents "will have a chilling effect on the

~

4 ability of this agency to receive in written format the coments, concerns and opinions of our staff." Affidavit of Louis 0. Giuffrida, at 3.

On October 19, 1983, Suffolk County filed a Supplemental Response in support of its motion to compel production of the documents. The County first claims that the Affidavit of Director Giuffrida is defective because it is unsigned. The County also asserts that FEMA failed to comply with the criteria listed by the Board at the Discovery Conference. Finally, the County asserts that the doctrine of " executive privilege" is not available to FEMA because that agency is not engaged 1

in policy fonnation. The County claims that FEMA "is engaged only in rendering its factual findings." Suffolk County Supplemental Response at 10. Thus, the County's argument goes, " executive privilege" may only be asserted in connection with policy formulation and since' FEMA l formulates no policy in connection with the documents in controversy here, it is not entitled to claim privilege.

In spite of the Board's prior characterization of the NRC Staff '

position on this issue as " wholly inadequate," NRC Staff elected not to respond to FEMA's claim of executive privilege.

II. ISStJES ,

Whether discovery of the documents in ques'.an is precluded by the doctrine of " executive privilege" and whetner FEMA properly invoked

" executive privilege" in this matter. '

d

l ,

1 0

5 III. APPLICABLE LAW The scope of discovery in NRC proceedings is quite br'cad. The pertinent rule is as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding . . . . It is not ground for objection that the infonnation sought will be inadmissible at the hearing if the infonnation sought appears reasonably calculated to lead to the discovery of admissible evidence."

10 CFR i 2.740(b)(1). (Emphasis supplied.)

Although not cited by any party to this dispute, the prior Licensing Board in the instant matter was called upon to decide whether the County could prevent disclosure of some of its documents because of

" executive privilege." In Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16' NRC 1144 (1982), the County opposed LILCO's discovery requests for emergency planning documents because of, inter alia, executive privilege of the County. The Licensing Board sumarized the applicable law concerning " executive privilege" as follows:

The executive privilege is a qualified privilege, and does not attach to purely factual comunications, or to severable factual portions of comunica-tions, the disclosure of which would not compromise military or state secrets.

EPA v. Mink, 410 U.S., at 87-88; Smith, suora, 403 F. Supp., at 1015. Furthennore, even comunications which fall within the protection of the privilege may be ,

disclosed upon an appropriate showing of need. United States v. Leggett & Platt, Inc.,

542 F. Zo 655, 658-659 (6tn Cir. 1976) cert. -

e 6

denied, 430 U.S. 945 (1977). See also Smith, 403 F. Supp., at 1015-1016. In oetermining the need of a litigant seeking the production of documents. covered by the executive privilege, an objective balancing test is employed, weighing the importance of th'e documents to the party seeking their production and the availa-bility elsewhere of the information contained in the documents against the ' government interest in secrecy. Legget & Platt, suora, 542 F. 2d, at 658-659.

j[1.at1164-5. It is clear that executive privilege in connection with state secrets or military secrets, the disclosure of which would threaten national security, is a matter of absolute privilege. See Kinoy v. Mitchell, 67 FRD 1 (S.D.N.Y. 1975). However, since the only claim of executive privilege asserted by FEMA here is that disclosure of the documents would be harmful to the decision making process of the agency, we agree with the statement of the prior licensing board in Shoreham that this is a " qualified privilege."

As pertinent here, " executive privilege" has been described by several other names: deliberative process of government privilege, governmental functions privilege, and intra-governmental documents privilege. The case law discussing this privilege has also considered exemptions under the Freedom of -Information Act. 5 U.S.C. 552(b)(5).

This statutory provision exempts from required disclosure " inter-agency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the agency." This provision has been interpreted by the courts in harmony with the doctrine of

" executive privilege" so that deliberative materials produced in the administrative decision making process are protected frem discl'osure

e 7

1 while purely factual materials are not protected from disclosure. See 3 Branch v. Phillios Petroleum Co., 628 F. 2d 873 (5th Cir. 1981). Agency I

documents which reflect advisory opinions, recomendations, or, deliberations fall within " executive privilege." U.S. v. Caeitol Service Inc., suora, at 582. The reason for protecting the confidentiality of comunications between high government officials and those who advise and assist them is to achieve the goal of receiving the most candid advice without regard for appearances or self interest of the adviser. U.S. v. Nixon, 418 U.S. 683, 705' (1974).

The U.S. Supreme Court in EPA v. Mink, 410 U.S. 73 (1973), set i forth rules for separating factual material from " deliberative information" through 3 camera inspection, in cases brought pursuant to the Freedom of Infonnation Act. The same procedure has been followed in

" executive privilege" cases. Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, l Jena, 40 F.R.D. 318 (D.D.C. 1966) a_ff'd f on opinion below, 384 F. 2d 979 (D.C. Cir.) cert. den. 389 U.S. 952 (1967).

[C]ourts should not hesitate to make a private

examination of disputed materials upon a reasonable showing that it can serve a purpose truly useful to a pa

-ty actually or poten-tially entitled to some discovery . . . . M camera inspection in exec.utive privilege cases is apprcpriate where it appears with reasonable clarity that the party seeking production is entitled to access to some of the materials demanded. Examination in this type of situa-tion enables the separation of what should be disclosed from what should not be revealed . . . ."

l M.at331.

~, , . _ . , . _ _ . . , . - _ . _ , . . . _ _ . - _ _ . .

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8

.IV. OPINION We begin our analysis and review of this controverty by assessing the affidavit of FEMA's Director, Louis 0. Giuffrida, in the light of our announced prerequisites and the County's objections. First, we note that our copy of the affidavit is signed by Director Giuffrida and his signature is notarized. There is no reason to doubt the validity of the signature. Accordingly, the County's objection that the affidavit is defective because it is unsigned will be overruled.

Second, the County claims that the FEMA affidavit should be rejected because it fails to comply with the criteria established for that affidavit by the Board during the Discovery Conference. We find that FEMA Director Louis 0. Giuffrida is the head of his agency. The Giuffrida affidavit describes the seven documents sought to be withheld.

The affidavit asserts that FEMA Director Giuffrida personally examined the documents in controversy and invoked " executive privilege" to prevent disclosure of " intra-departmental memoranda and comunications containing opinions, recommendations, and deliberations pertaining to decisions" of FEMA. He further stated that disclosure of the documents would have a " chilling effect" on the ability of FEMA to receive written comments and opinion: in the futura

. We find that, for the purpose of asserting " executive privilege," the seven FEMA documents are described and the reason for preserving confidentiality is articulated. Hence, we find that FEMA has complied with our order concerning the prerequisites 5

l 9

l

! of the claim of executive privilege. The objections of Suffolk County to the FEMA affidavit are overruled.

This leads us to the County's claim that the doctrine of " executive privilege" is not available to FEMA because the privilege is only available to protect against disclosure cf comunications regarding policy fannulation and FEMA does not engage in policy fannulation in this matter. We find that the County is mistaken. Executive privilege is not limited to policy fannulation but extends to the agency's decision making process. In Kaiser Aluminum & Chemical Coro. v. U.S. ,

157 F. Supp. 939 (Ct. of Claims 1958), Justice Reed (Retired), sitting by designation held, N The document sought here was a part of the administrative reasoning process that reached the conclusion embodied in the contracts with Kaiser and Reynolds. The objective facts, such as the cost, condi-tion, efficiency, terms and suitability are otherwise available. So far as the dis-closure of confidential intra-agency advisory opinions is concerned, we conclude that they belong to that class of governmental documents that are privileged . . . .

jd_.at946.

While we agree with the County that purely factual material is not privileged, it is unproductive to attempt' to distingu bh " policy fannulation" from " decision making" or " administrative reasoning." As long as the documents in controversy consist of advisory opinions, recommendations or deliberations in the agency decision making process, i 1 we find that they fall within the doctrine of " executive priv11ege'.'i Thus, the County's agrument that we should not consider FEMA's assertion j

l 1

= - . - _ _ - - _

o 10 of privilege, for failure to specify the type of policy formulation involved, is rejected.

Although we find in favor of FEMA concerning its claim of the existence of " executive privilege" here, that does not end the matter.

We have previously stated that the privilege is a qualified one. This requires us to balance the need for the privilege against the need of the County to have the documents. With this standard in mind, we begin our review of Director Giuffrida's affidavit asserting " executive 1

privilege" for seven documents. We shall discuss them in the order listed therein.

"(a.) All drafts of a memorandum . 1 ."

! At the outset we note that the final version of this memorandum, from FEMA to NRC on June 23, 1983, is public information which has been served on all parties. We find that the drafts which led up to the 3 final product are privileged and the County has failed to establish

! compelling reasons for disclosure. We see no reason to examine the l drafts. The County's motion to compel production of these drafts is i

l DENIED. .

"(b.) All drafts of a letter . . . ." .

Again we note that the final version of the letter draftad August 29, 1983 from FEMA to NRC is publicly available. We see no l

reason to examine these drafts. For the same reasons listed concerning drafts of the memorandum above, we OENY the County's motion to compel production of these documents. "*

y- - 4.-.-,. _ _._.....__ _ - - , . , . _ _ - . , . - . - _

n 11 4

"(c.) Those sections of a Briefing paper on Shoreham precared bv

-i the Staff . . . for . . . Regional Director . . . detailing his staff's identification of issues and recommendations."

We find this to be the type of opinion and recomendation squ.trely protected by the privilege.

The County again failed to establish any i compelling need for the document which would suffice to overceme the privilege. We found no reason to examine this document. FEMA's claim of " executive privilege" is SUSTAINED.

i l "(d.) Memorandum . . . dated June 7,1983 concerning the response of FEMA to the NRC reouest of June 1, 1983."

Although we prev 1ously found that FEMA had properly identified this l document for a claim of privilege, FEMA's description of the memorandum i .

l led us to believe that part of it may be discoverable. Accordingly, we i

unsealed the documents and examined this memorandum. We find that the memorandum contains factual material which can be separated from the i

privileged material. Prior to the last paragraph on page 1, the j memorandum contains only factual, non-privileged matter. Beginning with l the last paragraph on the first page, the remainder of the memorandum is i privileged. The County has not established a compelling reason for l disclosure of the privileged material. To clarify this matter, FEMA i

shall produce a copy of the June 7,1983 memorandum from Gary D. Johnson to Richard W. Krim through the paragraph ending with the phrase, "in preparation of FEMA's response to NRC." As to the remainder of that memorandum, FEMA's claim of privilege is SUSTAINED.

,,.,r,, . . - - - - - , , ~ < - - - . - - - - - - - - . - - - , - - - . ~ , . , - . - , - , - - - + - - - - . - - _ - _ . , ._-_.m me, _..e,. . -7

12 I

"(e.) Draft letter, never mailed . . . ."

For the reasons stated in connection with draft memorandums and draft letters in parts (a.) and (b.) supra, we uphold FEMA's claim of executive privilege and find no reason to review this document.

"(f.) Portions of Status Report . . ..

" ( g'. ) Analysis of a hyoothetical cuestion . . . ."

In connection with these two documents, we concluded that the documents in uestion should be reviewed in order to balance the l competing interests. Accordingly, the Board examined the portions of i

the status report and analysis of a hypothetical question and concluded

' that neither document contained discoverable factual material and that both documents contained opinions, deliberations and reconnendations which should be withheld. FEMA's claim of " executive privilege" as to f

these items is SUSTAINED.

In addition to the documents described above, Suffolk County, in its Motion to Compel Discovery from FEMA, requested production of i

written instructions from Gary D. Johnson of FEMA to Fred Sharrocks of

! FEMA concerning preparation of a draft response to a letter from NRC.

FEMA has not asserted " executive privilege" or otherwise objected to the producticn cf thi: m:terial. Accordingly, Suffolk County's motion to compel production of these written instructions is GRANTED.

t

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e 13 V. ORDER WHEREFORE IT IS ORDERED that FEMA shall submit to Suffolk County the following documents: (1) Page 1 of a memorandum dated June 7,1983 from Gary D. Johnson to Richard W. Krim through the paragraph ending with the phrase, "in preparation of FEMA's response to NRC;" and (2) written instructions from Gary D. Johnson to Fred Sharrocks concerning preparation of a FEMA response to a July 22, 1983 letter from William J.

Dircks of NRC.

IT IS FURTHER ORDERED that as to all other documents for which

" executive privilege" was claimed, as identified in the Suffolk County Motion to Compel Discovery from FEMA and the October 12, 1983 FEMA response, the FEMA claim of " executive privilege" is SUSTAINED and the Motion to Compel Discovery is DENIED.

ATOMIC SAFETY AND LICENSING BOARD M0 ' + = =

dpMES A. LAURENTON, Chairman inistrative Law Judge Bethesda, Maryland 4

e

ATTACHMENT B e .

4 l

2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4

fs_ ATOMIC SAFETY AND LICENSING BOARD Sefore Administrative Judges James A. Laurenson, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon i

)

In the Matter of ) Docket No. 50-322-OL-3

)

l LONG ISLAND LIGHTING COMPANY ) (Emergency Planning Proceeding)

)

, (Shoreham Nuclear Power' Station, )

Unit 1) ) March 6,1984

)

J MEM RANDUM AND ORDER RULING UPON LILCO'S i

MOTION TO COMPEL PRODUCTION OF DOCUMENT 5 AND

, OBJECTIONS OF GOVERNOR MARIO CUOMO l

A. Procedural History On February 6,1984, LILCO filed a " Motion to Compel Expedited 1

Production of Documents by New York State." On February 8, we issued an

" Order Establishing Expedited Response Schedule." On February 13, l . Governor Cuomo filed a Memorandum in Opposition to the Motion to Compel Production. On February 13, Suffolk County clso filed a " Response" te

, LILCO's motion =- On February 15, we held a conference teleohone call and advised the parties that New York State was ordered to produce a list of i

i all documents requested and to provide copies of the documents to unien i New York had no objection. On February 23, 1984, New York produced l cocies of certain documents, an explanation concerning other ' ccuments o

! ___ __ .,3n1cp could not be identified or located, anc cojections to tne rD1 v n-

_ . . . _ _ . _ _ _ . . _, ~.- - -

1 l

. 2 procuction of the remaining documents for the following reasons:

relevancy, executive privilege, attorney-client privilege and attorney work product. LILCO presented an oral argument concerning New Yorx's objections on February 24, 1984 (Tr. 3883-3889. ) On February 27, flew York submitted an Affidavit of David Axelrod, M.D., Chairman of tne New York State Disaster Preparedness Comission. Dr. Axelrod certified that he personally reviewed each of the withheld documents and was claiming " executive privilege" for certain documents. His affidavit further asserts that the release of these documents "would have a chilling effect on the ability of the DPC to receive written coments, concerns and opinions of its staff." On February 28, LILCO filed a j

" Motion for Leave to Make and Supplement Replies, etc." On February 29. -

counsel for New York and LILCD sent us letters concerning this dispute.

On March 1, the Board conducted a conference call with counsel for New York and LILCO at which time we advised them of our ruling on each document in question. New York and LILCO were informed that this Order would be put in writing. On March 2, counsel for Suffolk County sent us a letter pretesting the fact that the County had not been incluced in the conference teleonone call of March 1. The County also succested a procedure for future conference calls.

3. Issue Whether the documents in outstion are privilegec ano, if so',

• whether such privilege is outweighed by LILCO's need for tne cocuments.

s l

[

3 C. Ace 11 cable Law i i On November 1, 1082, we itsued a " Memorandum anc Crocr Ruling on  !

Suffolk County Motion to Compel FEMA to Produce Documents," In the Matter of Lone Island Lichting Co. (Shoreham Nuclear powt* Station, I

Unit 1) LSP-83-72, 18 NRC (1983). Therein, we discussed 4: tengtn

the law applicable to " executive privilege." We set # orth prer.edural l

l requirements for asserting the privilege as well as the 6ct that it is, j insofar as relevant here, a qualified privilege which requires a 4

)

balancing test. Thereafter, we conducted an 1n, camera inspection cf i

certain FEMA documents. We held that some were privileged and others were not. Insofar as New York asser*s " executive privilege" here, we reaffim our prior analysis. Indeed, none of the parties to the instant i

dispute challenge our prior conclusions of law or their application.

To recap our prior conclusions on the doctrine tf " executive privilege," we first held that the claim of " executive privilege" must (1) be asserted by the head of the agency; (2) specifically describe :ne documents sought to be withheld; (3) state precise reasons for Dreserving confidentiality 4f the specific documents; and (4) ce ,

accompanied by the documents themselves, under seal, 'or possible h. ' ,

4 camera inspection by the Board. If the governmental agency makes a ordma facie showing of the above criteria, the Boarc will then finc *nat the privilege is a qualified one and will balance the litigant's need'

'or the documents against the government's asser-ion of the "cnilling effect" on its decision making process. .

T

.1 In connection with the instant dispute, we re-examined the guicance of the federal courts in the application of the balancing test. In U.S.

v. Leccett & Platt, Inc. , 542 F.2d 655 (6th Cir.1975), the court statec, -

The district court properly applied a balancing test in determining w~hether LP could pierce the qualifiec governmental official information privilege to obtain the investigatory files . . . . To over-ride the government interest in secrecy, the court must find that LP's objective, rather than its subjective need for the documents overrides the governmental interest in secrecy.

3.at658. The cour*, went on to identify the factors to be considered including the following: the importance of the documents to the party's case and the availability elsewhere of the information contained in the documents. H. at 659. . - -

In A. O. Smith v. FTC, 403 F. Supp. 1000, 1015-6 (O. Del. 1975),

Judge Schwartz states as follows:

While the exact showing necessary to sumount a governmental claim of privilege is unclear, what is basically involved in each case is an 14 Eh balancing of individual need Tor TMe materials against the -

harm resulting from any such disclosure. In fact, it is this assessment of individual need that most completely distinguishes adjudications of executive privilege under

• the Freedom of Infomation Act, where an individual's need for materials is deemed

, irrelevant. (CitationsOmitted.)

. In Kinov v. Mitchell, 67 F.R.D. 1, 11 (5.0.N.Y. 1975) the test was stated as follows: ,

y 1 *his type of infomation is protected by a s' ,

cualifico, not se aosolute srivilege, so

5 that the claim of privile<; made by the Government may be overcome by a litigant's showing of need for the materici grect enough to outweigh the policies favoring nondisclosure. Or the Court may reconcile l

the competing interests, after in, camera l inscection of the documents, by creering '

partial disclosure, or disclosure subject to a protective orcer.

The Court went on to state:

The factors which the Court considers are  !

many and complex. The deliberative and l decision-making process of' Government officials  !

are held confidential to preserve the free i expression, integrity and independence of those responsible for making the determinations that enable government to operate.

f Ibid.

And finally, Against these considerations favoring nondis-closure, the courts weigh the needs of the litigant seeking disclosure, keeping in mind the philosophy of broad discovery which the Federal Rules of Civil Procedure emorace.

Discovery is most likely when the material is centrally important and the litigant has no other means of obtaining equivalent proof of his allegations or defenses.

jf at 12 .

The " Attorney-Client Privilege" and " Work Product Doctrine" were discussed in detail in an earlier Memorandum and Order' Ruling on LIL:3's Motion to Ccmoel Discovery of Suffolk County Emergency Planning

- Documents of the other licensing board at 16 NRC 1144, 1157 _e_t_. sec . (1982). We adopt and apply the tests discussed therein. Without belaboring the point, it should be notec that we have sustained eacn anc l

s 5

every objection of New York which was founced upon " attorney-client" or

" work product" privilege.

D. Acolication of the Law to the Documents in Controversv.

In connection with several documents, New York objected to Ine 4

motion to. compel production for the reason that the document was believed to be " irrelevant because it concerns a plan prepared by LILCO in the spring of 1982, which plan relied on the County and the State for implementation." (emphasis in original.) Objections of Governor Mario Cuomo, etc. at 3. Other relevancy objections were lodged against production of documents dealing with DPC rules and reculations. Id. at

5. Suffice it to say that the liberal provisions of Rule 25 of the Federal Rules of Civil Procedure have been incorporated in the NRC Rules of Practice. The applicable NRC discovery rule provides that "it is not ground for objection that the information sought will be inacmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 10 C.F.R. I 2.740(b)(1).

In each instance where New York asserts a relevancy objection, we find that the discovery of the New York State review of the earlier LILCO plan and the DPC procedures are reasonably calculated to leac to the discovery of acmissible evidence. All of New York's relevancy ocjections are overruled.

In the majority of instances we sustained New York's claim .cf.

i i " executive orivilege." The principal area in wnich we overruled New l

York's assertion of " executive privilege" is _the review anc assessmea:

e 7

of LILCO's earlier emergency evacuation plan by New York's employees.

For purposes of identification, these documents are designatec anc listed below as Nos. 1, 2, 12, 15-23, and 30. At the outset we note that many of these documents are primarily factual and, hence, no

" executive privilege" attaches to purely factual material. For example, the New York review of LILCO's earlier emergency evacuation plan founc

many elements required by NUREG-0654 to be " missing." However, intertwined with this factual material are other assessments af

" adequate" or " inadequate." Such subjective determinations constitute advisory opinions or recommendations which are included within

" executive privilege." Hence, we found that most of,the above documents fall within " executive privilege."

Pursuant to our prior discussion of the qualified nature of

" executive privilege," we next proceed to the balancing test of weighing LILCO's need for the documents against New York's need for secrecy. At the present time, New York has become an active participant in opposition to LILCO. New York expects to present witnesses who will testify concerning deficiencies or inadequacies in LILCO's current plan.

. We, therefore, conclude that fairness dictates that LILCO should be given access to prior assessments of LILCO's earlier evacuation plan in order to determine whether it can impeach New York's witnesses with prior inconsistent statements aoout the same or similar provisions of the plan. Obviously, this information is not available to LILCO'througn

! any other means. We find. that LILCO has a comoelling need to see tnese cocuments. .On .the ether hand, New York's ' ear of a " chilling ef#ect on

I n

l '

S the ability of the DPC to receive. written comments, concerns, anc opinions of its staff" is less compelling. The documents in question concern advice that was given more than a year ago acout a plan that is no longer viable. While this does not mean that discovery of such information will not lead to admissible evidence, it does mean that tne

" chilling effect" is less than it would be for a viable plan. Moreover, the nature of the'" comments, concerns, and opinions" contained in the document is such that we find that disclosure of these documents will have little, if any, " chilling effect." Frankly, New York is not entitled to have its cake and to eat it too. As an active participant in this proceeding, its interests in preserving secrecy are outweighed by LILCO's need to have these documents to effectively cross-examine New York's witnesses.

As we explained to New York and LILCO in our telephone conference call of March 1,1984, we have numbered each of the documents (or groups of documents) in question. We will proceed through this list of 36 documents in the order in which they are listed beginning at the bottom of page 3 of Governor Cuomo's Objections. The description of each document by New York was inadequate for us to rule upon the assertion of the privilege without conducting an in, camera inspection. Thereforc, wc have read each of the 36 documents and applied'the tests enumerated abo've. Where we agree with New York, we have SUSTAINED its ocjection and DENY the motion to compel procuction of the document. Where we find for LILCO, we OVERRULE New York's objection and GRANT the motion to

---r-* '" '

s 9

ompel production of the document. In a few instances, we have SUSTAINED the objection in part and OVERRULED the cojection in part.

Document Date Objection Ruline

1. 6-1-82 Irrelevant; Executive OVERRULED; We find that Privilege this document is subject to Executive Privilege, but that LILCO's need to have this document outweighs New York's need for secrecy for the following reasons: (1)

LILCO may be able to show that New York witnesses who will testify against the current plan made prior assessments which are con-trary to their present testimony; and (2) the form in which the assessment is made is such that dis-closure of the document is not likely to have a

, " chilling effect."

2. Undated Irrelevant; Executive SUSTAINED as to page 1 Privilege because of Executive Privi-lege containing opinions of the author, but OVERRULED as to the " comments." Tne comments are primarily factual and LILCO's need for these " comments," whicn are not available elsewhere,. outweighs New York's need for secrecy.

3. 5-17-82 Executive Privilege OVERRULED. We fino this to be a factual account of a meeting, and it does not oualify as executive 'orivi-lege.

4 5-12-82 Executive Privilege SUSTAINED. These acoear to be handwritten notes con-aininc personal

l l

10 l

observations of the autnor.

LILC1's need for this doctAent does not overcome New York's need for secrecy.

5. A-25-83 Executive Privilege SUSTAINED. LILCO's need to know does not outweign New York's need for secrecy.

6. 3-4-83 Executive Privilege SUSTAINED. Same as No. 5.

7. 3-7-83 Executive Privilege, SUSTAINED. Attorney-client Attorney-Client and and work product privilege.

Work Product

8. 2-23-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Product

9. 1-19-83 Executive Privilege SUSTAINED. Same as No. 5.

10. 2-16-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Product

11. 2-11-83 Executive Privilege SUSTAINED. Same as No. 5.

12. 1-30-82, Executive Privilege-- SUSTAINED only as to the error--should merely a staff advisory 2-page cover memo; be 11/30/82 rating which was never OVERRULED as to the 13 acted upon by DPC pages of review for the reasons in No. 1 and 2.

, 13. 12-6-82 Executive Privilege SUSTAINED. Same as No. 5.

la. Various Executive Privilege SUSTAINED: Same as No. 5.

Dates

15. 11-24-82 Executive Privilege OVERRULED. LILCO's neec o see Onis otherwise unavailable information outweighs New York's neec for secrecy.

15. 11-23-82 Executive Privilege OVERRULED. Same as No. 15.

17. 11-19 Executive Privilege 3VERRULED. Same as No. 15.

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11 i

18. 11-15-82 Executive Privilege OVERRULED. Same as No. 15.

19. 10-25-E2 Executive Privilege OVERRULED. Same as No. 15.

20. 9-16-82 Executive Privilege OVERRULED. Same as No. 15.

21. 9-13-82 Executive Privilege OVERRULED. Same as No. 15.

22. 9-8-82 Executive Privilege OVERRULED. Same as No. 15.

23. 5-17-82 Executive Privilege OVERRULED. This is a purely factual document to which executive privilege does not attach.

24. 11-9-82 Executive Privilege SUSTAINED. Same as No. 5.

25. 7-23-83 Executive Privilege SUSTAINED. For the reasons and Attorney-Client set forth in document No. 5 Privilege with the exception that a clean copy of the letter dated June 23, 1982 from Howard E. Pachman to Chairman Hennessey shall be

. released since this letter is not privileged.

25. 5-18-82 Executive Privilege, SUSTAINED. Same as No. 7.

Work Product and Attorney-Client

27. 7-18-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Product

23. 7-1-83 Executive Privilege; OVERRULED. The page 1

. Irrelevant memoranoum is purely -

factual and executive privilege does not attach.

l The attachment is not l

privileged and we have pre-viously denied New York's relevancy objection to l

this.

29. 6-27-83 Executive Privilege , SUSTAINED. Same as No. 7 Attorney-Client and Work Product

e 12

30. 6-20-83 Executive Privilege, SUSTAINED as to the

Attorney-Client and first six pages of legal Work Privilege memoranda for the reasons set forth in No. 7.

However, the attachments appear to be the same attachments previously ordered to be released in our ruling concerning docu-ment No. 1. To the extent that New York objects to release of the review and rating, that objection is OVERRULED and those two attachments to the memoranda are ordered to be released.

31. 5-17-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Privilege

32. 5-11-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Privilege

33. 4-29-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Privilege 34 4-29-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Product

35. 5-18-83 Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Product

36. Undated Executive Privilege, SUSTAINED. Same as No. 7.

Attorney-Client and Work Product l

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13 E. Suffolk County's Objections to Conference Call Advisinc LILCO anc New York cf tne Boarc's Rui1nos in in1s 01senvery 01 scute.

On March 2,1984, one of the attorneys for Suffolk County sent tne Board a letter stating that "the County strenuously objects to this Board's conduct." The County was upset that it had not Deen includec in the conference call of March 1, to hear the Board's ruling on this discovery dispute between 'LILCO and New York. The County notes that it had previously taken a position on this matter on February 13. The County's February 13 " Response" consisted of two sentences supporting the argument of New York and opposing LILCO's motion.

In light of all the circumstances, we believed that the instant dispute was between LILCO and New York concerning whether New York would be compelled to produce documents which it claimed to be privileged. We convened the conference call to notify LiLCO and New York of our rulings so that they could take steps to implement the ruling when it was wri tten. The Board confesses that it not only neglected to include Suffolk County in the conference call but also omitted NRC Staff, FEMA, Shoreham Opponents Coalition, North Shore Connittee Against Thermal and Nuclear Pollution, and the Town of Southampton. Unless the County presents facts to support its assertion that we "have often made statements of pertinence to the parties that are not later memoriali:ec in written oroers," we shall disregard such a claim. We have enceavored to minimize telepnene conference calls because of the oifficulties.

presented in conducting such calls with eignt carties. In the future,

\

9 ..

I

]

i 14 we will consider Suffolk County's request that a transcript be made of each such call.

ORDER WHEREFORE IT IS ORDERED that LILCO's Motion to Compel Production of New York State Documents is GRANTED as to the iocuments listed and designated above as follows: 1, 3, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 28.

IT IS FURTHER ORDERED that LILCO's Motion to Compel Production of New York State Documents is DENIED as to the documents listed and designed as follows: 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 24, 25, 27, 29, 31, 32, 33, 34, 35 and 36.

IT IS FURTHER ORDERED that LILCO's Motion to Compel Production of New York State Documents is GRANTED IN PART and DENIED IN PART as more fully sent forth above as to the documents listed and designated as follows: 2, 12, 25 and 30.

ATOMIC SAFETY AND LICENSING BOARD

, l m, l. [ - : ru.u w, < -

~

JAME5 A. LAUREN50N,-thai rman Administrative Law Juoge I

Sethesda, Maryland -

i I

1 I

. n LNITED SrKIES OF &!ERZCAN 'ATTACHME!!T C 1 NUCLEAR REGUIATORY COMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

) Docket No. 50-322-OL-3 IDNG ISIAND LIGCltG 0:NPANY , woergency Planning)

)

(Shorehan Nuclear Power Station Unit 1)

)

FDR'S RESPONSE TO SUFFOLK COUNTY REQUESI POR PRODUCTICN OF DOCLMENIS FH M uns served with a Discovery Request by Suffolk County on April 23, 1984. Included in that request was a three part Docunent Request related to the Regional Assistance Coanittee's (RAC) review of the LIICO Transition Plan. Pursuant to the provisions of 10 CPR 2.740(f), 2.741(d) and the Board's instructions of May 9,1984 FE% respectfully submits the following reply.

FER has produced as part of a Freedom of Information Request nunerous docunents to ene las firm of Kirkpatrick-Inckhart. Counsel for Suffolk County has agreed that FB% need only identify those docunents previously provided which are responsive to the present Discovery Request.

~

l l

"he following documents relevant to this Request were provided to Suffolk Cotnty's counsel pursuant to the FBIA inquiry:

l l 1. Septenber 23, 1983 memorandum from Jeffrey S. Bragg, Executive Deputy Director to Frank P. Petrone, Regional Director, Region 11 requesting Mr. Petrone's office arrange for the perfcznance of  ;

a full RAC review of Revision 1 of the LIIID Transition'Pran. l

2. Septemoer 23, 1983 memorandum from Richard W. Krima, Chai: man, 1 FRPCC to the Federal Radiological Preparedness Coordinating i

_ __ , ___ Comnittee (FRPCC) members inrorming them that a request will be '

' 5 3 y.r er P 6 7__ made for RAC support.

n

3. October 4,1983 tnamorandun from Frank P. Petrone, Regional Director to all Region II RAC menbers outlining the schedule for review of the LIlfo Plan for Shoreham.

4. October 7,1983 menorandun from Philip.McIntire for Frank P.

Petrone, Regional Director to Richard Krinun, Assistant Associate Director, NIH -

Subject:

Status Report #1 Shorehan Plan review.

5. October 24, 1983 memorandun from Frank P. Petrone, Regional Director to Richard W. Krinun,.

Subject:

Shoreham Plan Review Status Report #2.

i

6. October 27, 1983 menorandun from Richard W. Krinun to Edward L.

Jordan, Director Division of EPEER, USNRC.

Subject:

FDR'S need for an extension to complete the review of the LIILO Transition Plan, Revision 1.

4

7. November 4,1983 letter from Iouis 0. Giuffrida, Director FE%

and Nunzio J. Palladino. 01 airman NRC to Honorable Alan K.

Simpson conveying quarterly report m emergency preparedness for nuclear power plants.

8. Novenber 8,1983 memorandun from Frank P. Petrone to Richard Krinen,

Subject:

Shorehan Plan Review Status Report #3.

9. November 16, 1983 menorandun from Frank P. Petrone to Richard W.

Krinun,

Subject:

Shorehan Plan Review Revision 2.

10. November 18, 1983 memorandun fran Roger B. Kowieski, Chairman RAC to Philip McIntire, Chief NIH, Region II,

Subject:

LTTm's Bnergency Response Plan Revision II.

~

11. Novenber 23, 1983 memorandun from Roger B. Kowieski to Frank P.

Petrone and Philip McIntire -

Subject:

Review of the LIILO Plan for the Shorehan Ntr1*=" Power Station (Assunptions used in review of Plan).

12. Decenber 8,1983 menorandun from Samuel W. Speck,- Associate Director State & local Prograns and Support to Frank P. Petrone, .

Subject:

Extension of time for the Review of the LIILO Transition Plan. Revision 2.

13. Decenber 12, 1983 memorandum from Roger B. Kowieski to Philip H.

McIntire,

Subject:

RAC review of the LIIID Transition Plan.

14. Decenber 14, 1983 letter fran Ibnald P. Irwin to Bernard M.

i Bordanick dealing with timeliness of submittal of Revision 3 to M .

15. Decenber 14, 1983 letter from Donald P. Irwin to Stewart M.

l Glass including a general description of changes to occur in Revision 3. ..

l .

I

- _ . ~ . , - - . _ . . _ . . . - . _ _ _ _ _ . _ . _ , . _

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16. Decenber 14, 1983 letter from Ibnald P. Irwin to Stewart M.

Glass relating to Revision 3 of the LIILD Transition Plan.

17. December 15, 1983 Telefax from Frank P. Petrone to Richard W. ,

Kri:mn,

Subject:

Shoreham Activities Report #5. l

18. December 16, 1983 from Roger B Kowieski to all Region II RAC members outlining schedule for work on Revision 2.

19. Decenber 20, 1983 memorandun from Frank P. Petrone to Samuel W.

Speck,

Subject:

Extension of time for RAC review of LIIID Transition Plan for Shoreham.

20. Decemoer 21, 1983 letter from Stewart M. Glass to Donald P.

Irwin, confirming Transmittal of collated LIlf0 Transition Plan, Revisions 3 and matrix of changes.

21. December 29, 1983 letter from John Wesmantle (LIILO) to Stewart M. Glass, confirming that copies of the LIIG) Transition Plan were sent to all RAC members. Attached 1s cross - reference to the plan.

22. January 9,1984 memorandun from Frank P. Petrone to Sanuel W.

l Speck,

Subject:

RAC Review of LIIID Transition Plan - Revision l 1, 2, & 3.

23. January 10, 1984 - Attendance list and staff notes of LIIID Briefing on Revision #3. (In attendance representatives frcm Kirkpatrick-Irckhart, NRC, AtL, EHiA, LIILO, Hunton-Williams, KID Assoc. , LERIO).

24 January 13, 1984 - memorandun from Richard W. Kriran to Edward L.

Jordan,

Subject:

RAC review of LIILO Transition Plan for Shorehm.

25. January 20, 1984 attendance list from RAC meetir4

26. January 24, 1984 menorandun from Frank P. Petrone to Samuel W.

Speck, Relating to Shorehm Plan Review, Governor's position, legal authority and assunptions made in order to allow RAC menbers to proceed with a technical review.

27. January 25, 1984 letter from S auel W. Speck to William J.

Dircks as to whether FE1A should continue, modify or tecninate the NRC requested reviews of the LI'E Flan.

28. February 3,1984 memorandum from Samuel W. Speck to Frank P.

Petrone,

Subject:

Whether tac wishes FFA to proceed with Plan j review.

e 1

29. February 9, 1984 letter to H. Taylor Reveley III, Esq. from Bnergency George W. Jett, General Counsel,

Subject:

preparedness issues for Shoreh m . l March 1, 1984 Fax of changes to page 6 of portion of RAC

' 30. .

l review.

- 31. Copies of pages that were changed in RAC review after initial subraittal to FBM Headquarters. ,

32. March 14, 1984 memorandtzn from Roger B. Fowieski to Stewart M.

l Glass conveying letter from Joserh H. Keller.

33. March 14, 1984 memorandun from Roger B. Kowieski to Stewart M. Glass,

Subject:

Submission of Revisions / Additions to LIIED Transition Plan.

34. Ilarch 15,19% letters to Dr. Catacosinos, (hairman LIILO, King r l Mallory, Honorable Alan Simpson fmn louis O. Giuffrida, i

J Director FB% conveying copy of letter to NRC.

?

March 15, 1984 memorandtzn from Roger B. Kowieski to Marianne 35.

Jackson conveying Regional Director briefing paper and chronology of events relevant to the review of the LIIID ~

l 1

Transition Plan, Revisions 1, 2 fr 3 (with those attachments).

March 15, 1984 draft of letter from Ronald G. Eberhardt, l

36.-

Director of Congressional Relations conveying copy of RAC l

l review. Attached is list of Congressional recipients of that letter. -

l i

37. March 15, 1984 letter from Samuel W. Soeck to Willian J. Dircks Also provided susnary sheet prepared conveying the RAC review.

{

l by Richard W. Krim comoaring Argonne review and RAC review.

I letter from Congressman Markey to louis 0.

38. March 19, 1984 i

Giuffrida, Director FEMA requesting additional information. .

l

39. March 30, 1984 esemorandun frein Stewart M. Glass to George Jett

Subject:

Status Report on Shorehan ASLB Proceedings.

l

40. April 13,1984 letter from Donald P. Irwin to Stewart M. Glass and Spence Perry requesting a meeting with the RAC.

In addition, the following docunents have bm provided to Suffolk l County with this Response:

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1. Secto ber 15, 1983 memorandum from Edward L. Jordan to Richard l

W. Krim,

Subject:

Federal bnergency llanagement Agency (FBu)

Support for the Nuclear Regulatory Comission (NRC) Licensing of

{

' Shoreham Nuclear 1tation. -

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. , _ . . - . _ , ,_, _. _.._1 _ . . _ . . . , . , _ , _ , - _ , _ _ , . , _ _ _ _ _ . . . , , . . . . _ . . , . , , . . , _ _ _ _ , . , , , , . . _ _

o

2. Novenber 10, 1983 memorandun from Edward L. Jordan to Richard W.

Krim.

Subject:

Federal Emergency Management Agency (FH M)

Support for the Nuclear Regulatory Comission (NRC) Licensing of Shoreh m Nuclear Station.

1

3. Novenber 15, 1983 memorandun fran Edward L. Jordan to RicMrd W.

Krim,

Subject:

Shoreh m Long Island Lighting Company Transition Plan.

4. December 22, 1983 menorandum from Edward L. Jordan to Richard W.  !

Krim,

Subject:

The Federal Emergency Management Agency (FliMA) 1 Support for the Nuclear Regulatory Comission (NRC) Licensing of l Shoreh m Nuclear Station.

4. Decenber 28, 1983 memorandun from Edward L. Jordan to Richard W.

Krim,

Subject:

The Federal Dnergency Managernent Agency (FE%)

Support for the Nuclear Regulatory Comission (NRC) Licensing of Shorehm Nuclear Power Station.

5. January 11, 1984 memorandun from Edward L. Jordan to Richard W.

Krim,

Subject:

Federal Bnergency Managenent Agency (FE%)

Review of Iong Island Lighting Company (LIILO) Transition Plan for the Shorehm Nuclear Power Plant.

6. January 26, 1984 letter from William J. Dir::ks, to Samel W.

Speck regarding response to January 25, 1984, letter asking whether Fe% should continue, modify, or terminate its review of LIILO offsite emergency plans for the Shorehm facility.

7. February 24, 1984 Draft memorandun from Sheldon A. Schwart: to E. Otristenbury,

Subject:

FH M review of offsite emergency plan for Shorehan.

8. April 2,1984 letter from A. Schwencer, to M.S. Pollock regarding - Federal Energency Managenent Agency (FHM) Findings on long Island Lighting Company (LIILO) Transition Plan for

• Shoreham.

Pursuant to the terms of 10 CFR 2.740 (f) and 2.741 (d), Rule 26(b) of the Federal Rules of Civil Procedure and the terms of the Boards instructions of May 9, 1984 the Federal Dnergency Management Agency respectfully objects to the release and discovery of the following documents.

1. Imeter dated November 3,1983 conveying NRC RAC menber, Craig Z.

Gordon's, coments on the LIII0 Transition Plan, Revision 1 for l Shorehan.

l l 2. Menorandun dated Novenber 2,1983 conveying DOE RAC menber, Herb G. Fish's, comments on the LIIf0 Transition Plan, Revision 1 for Shorehm. .

3. Letter dated October 21, 1983 conveying FDA (HHS) RAC member,' l Ronald E. Bernacki's, coments on the LIILO Transition Plan, Revision 1 for Shorehm.

e

4. Memorandun dated Novenber 3,1983 conveying DUr RAC mernber, Paul Intz's, emments on the LIILO Transition Plan. Revision 1 for

~

...Shorehm.

5. 14cter dated October 14, 1983 conveying USDA RAC menber, Cheryl Malina's, corsnents on the LIILO Transition Plan, Revision 1 for l Shoreham.

6. Submission dated Novenber 1,1983 conveying FD% employee, Robert L. Acerno's, consnents on the LIlf0 Trr.cicion Plan, Revision 1 for Shoreham.

7. letter dated November 2,1983 conveying INEL RAC consultant, Joe H. Keller's, comments on the LIlf0 Transition Plan, Revision 1 for Shorehan.

8. Memorand a dated November 4, 1983 conveying ANL RAC consultant,

'I5cmas E. Baldwin's, ermnants on the LIICO Transition Plan Revision 1 for Shoreham.

9. 14tter dated December 5,1983 conveying EPA RAC member, Linda Olmer's, consnents .on .the LIIE Transition Plan Revision 1 for i Shorehan.

10. Iatter dated January 12, 1984 conveying NRC RAC member, Robert J.

Bores's, coments on the LIIDO Transition Plan Revision 3 for

'Shoreham.

11. Memorandum dated January 6,1984 conveying DOE RAC ==1-2, Herbert Fish's, coments on the LIIm Transition Plan, Revision 3 for Shorehan.

12. Istter dated January 6,1984 conveying FDA RAC member, Ronald E.

Bernacki's, coments on the LIII0 Transition Plan, Revision 3 for-Shoreham.

)

13. Memorandtra dated January 10, 1984 conveying DGI RAC member, Paul

Intz's, coiaments on the LIILO Transition Plan, Revision 3 for Shorehan. -

j 14. Latter dated January 6,1984 conveying USDA RAC member, Cheryl i Malina's, coments on the LIIC Transition Plan, Revision 3 for Shorehan.

15. Submission dated January 9,1984 written directly en copy of preliminary draft conveying FEMA staff member, Robert L. l Acerno's, coments on the LIILO Transition Plan Revision 3 for '

Shorehan.

16. FE A Plan Review Form - dated January 12, 1984 conveying EPA RAC mornber, Joyce Feldnan's, coments on the LIlm Transition Plan Revision 3 for Shoreham.

l l

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17. Letter dated January 10, 1984 conveying MEL RAC consultant Joe

~ H. Keller's. ccanents on the LIIED Transition Plan Revision 3 for Shorehan. -

18. Memorandun dated January 9,1984 conveying FEM nember, Marianne C. Jackson's, cournents on the T.TTm Transition Plan Revision 3 for Shorehan.

19. Submission dated January 9, 1984 written directly cn Preliminary ,

Draft conveying ANL RAC consultant, Thomas E. Baldwin's, ccanents 1 on the review of the LILCO Transition Plan Revision 3 for  :

Shoreham.

20. Preliminary Draft of Consolidated RAC Review dated January 20, i

1984 with individual notes of Q1eryl Malina of RAC meeting of January 20, 1984.

21. Preliminary Draft of Consolidated RAC Review dated January 20, 1984 with individual notes of Robert Bores of RAC meeting of January 20, 1984.

, 22. Preliminary Draft of Consolidated RAC Review dated January 20, 1984 with individual notes of Joyce Feldman of RAC meeting of January 20, 1984.

23. Preliminary Draft of Consolidated RAC Review dated Janaury 20, 1984 with individual notes of Paul Intz of RAC meeting of January 20, 1984

24. Pre-Decisional Drafts of March 15, 1984, latter Transnitting FER Finding to NRC.

25. Pre-Decisional Draft of Definitions of Categories, etc. , for February, 1984, Consolidated RAC Review of the i. Tim Transition ,

Plan.

26. Sample of Four Random Draft Pages of February,1984, Consolidated 8AC Review of LILCD Transition Plan.

27. Pre-Decisional Drafts of the 2/21/84 Region 11 Transmittal Memorancun to rieadquarters for the RAC review of the LILCD Transition Plan.

28. Pre-Decisional Drafts of the 2/3/84 Memorandun to Frank P.

- .Petrone,. Regional Director, Region II, From Samuel W. Soeck, Associate Director, State and Iocal Programs aid Support, Federal Snergency Management Agency,

Subject:

Shorehan Plan Review.

29. Pre-Decisional Draft of Discussion Points, for Richard W. Krian and Joseph Winkle for Press Conference (not held) .on the FEMA finding of 3/15/84 for Shorehan.

30. Pre-Decisional Sets of Q's and A's for Press Conference '(not held) on the FD % Finding of 3/15/84 on Shorehan.

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31. Margaret Lawless' copy of Region 11 RAC findings with her annotated notes. _ _ _ . . . .

32. Pre-Decisional Notes and Option Paper on'5'c'r'ategies for Handling Shorehan Offsite Bnergency Preparedness Problen.

33. Draft Telefax Header and Pre-decisional draft of FB % 10/27/83 Memorandun to: Edward L. Jordan, Director, Division of Bnergency Preparedness and Engineering Response, Office of Inspection ed Enforcement, Nuclear Regulatory Comnission, From: R16ard W.

Krian, Assistant Associate Director, Office of Natural and Technolo-gical Hazards Programs, Subject': Federal Bnergency Nnagenent Agency Support for Nuclear Regulatory Consnission Licensing of Shoreham Nuclear Station.

34. Memorandun to Regional Assistance Comnittee members from Roger Kowieski,

Subject:

Imgal Issues Identified During the RAC Review of LIIf0 Transition Plan for Shorehan (Revision 3).

35. Three (3) Drafts of Consolidated RAC Review of LIIID Transition Plan for Shorehan - Revision 3, (1/20/84)-Annotated with notes of FR%

employees and contractors. .

36. Draft LIILO Plan Review (LIILO Transition Plan Revision 1) consoli-dated RAC review. ,

37. 26 pages of a flip chart of Regional Assistance Corrnittee members' individual connents on LIIID Transition Plan titled.Shoreham Review Compilation of RAC Comnents.

It is the position of the Federal Energency Managenent Agency that the aoove thirty-seven (37) d==mts are privileged, that they are subject to the protection of executive privilege. FDR rely's on the Board's Memorandum and Order Ruling on Saffolk County Motion to Compel FB % to Produce Documents dated November 1, 1983, the argunents FB%

submitted in suoport thereof (attached) and the Board's Menorandun and Order Ruling Upon LIILO's Motion to Compel Production of h==nts and Objections of Govemor Mario Cuomo dated thrch 6,1984.

The above docunents fall within a number of subgroups. Items one (1) through nineteen (19) contain the individual review cournents of the individual RAC members, consultants and staff as provided to the RAC mairman. Items twenty (20) through twenty-three (23) contain the

individual personal notes of RAC menbers of the RAC meeting of January 20, 1984 as annotated on the Preliminary Draft of the Consolidated RAC Review. It should be noted that these personal rotes were not originally  !

in the possession of HMA but were provided by the RAC members to Region II to enable it to fully identify all items conterplaced by Suffolk County's Discovery Request. The individucl notes have not been reviewed at this time. Items twenty-five (25), twenty-six (26), and thirty-four (34) through thirty-seven (37) contain the various drafts and working papers of the RAC review and the compilation of the individual RAC comments. Mille item thirty-one (31) contains a headquarters staff employee's cormnents on the RAC Plan Review.

FDIA objects to the discovery of any advisory memoranda, predeci-sional deliberations related to the RAC review, or the input of the individual RAC inembers to the final MR RAC report. HMA has provided to Suffolk County docunents outlining the assumptions made in order to allow the RAC members to proceed with a technical review and copies of changes and clarifications .t'a the Review after its subnittal to miA headquarters.

The County's docunent request to m% makes absolutely no showing of any circunstances requiring disclosure of the requested documents. It is obvious from the Memorandtzn explaining Suffolk County Discovery Requests Relating to m iA that they are seeking to ascertain the predecisional thoughts and opinions of the individual RAC m::mber::. -E::: tive privilege is meant to protect these very thought processes, advisory opinion I recoinnendations and deliberations.

l 0

. _ _ _ _ ._ ~ _ _ _ _ .

e In addition these docunents are irrelevant and will not lead to the production of admissible relevant evidence. The FEMA RAC r$ view is not -

being litigated in this proceeding and the inputs of the various msnbers of the RAC Consnittee have absolutely no probative value. The RAC

. submitted its final report which reflects the collegial judgment of the RAC. The RAC review is included as a portion of the testimony which .

further addresses the specific contentions which are the issues in

, litigation before this body. The FEMA witnesses have indicated that the purpose of their testimony is to address the contentions relating to offsite preparedness at the Shorehan Nuclear Power Station which are properly the matter before this Board. Further, the panel indicater that their testimony (Q.17 p. 8 FEMA Testimony) represents the current FEMA evaluation of the LIILO Transition Plan, Revision 3.

Itens twenty-four (24), twenty-seven (27) through thirty (30), and thirty-two (32) and thirty-three (33) all consist of drafts of docunents which contain the thoughts and opinions of individual staff members. In the case of items twenty-four, twenty-seven ed twenty-eight the final documents were subutered and are available to cM parties. These doc:znents fall squarely within the scope of executive privilege while the -

matters contained therein are not related to the issues in contention before this Board.

I 4

l It is understood that pursuant to NRC regulations all that FEMA need l mdertake in response to the County's Discovery request is identify the i itens being withheld, state the privilege that is being asserted ed the h

l

s reason the privilege applies to the doctznents in question. The burden is on the County to seek an Order to Compel. Under normal circunstances the - - - -

party from whom discovery is sought would have an opportunity to respond to the County's Motion. Due to the constraints of time that opportunity is not available, therefore FHiA expresses its willingness to engage in oral argunent on Friday, May 18th if that would assist the Board.

Respectfully submitted,

• %f . 'z Stewart M. Glass Regional Counsel Federal Emergency !!anagement Agency 26 Federal Plaza New York, New York 10278 Dated: May 14,1984 e

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ATTACHMENT 7 e

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges James A. Laurenson, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon

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In the Matter of ) Docket No. 50-322-0L-3

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LONG ISLAND LIGHTING COMPANY ) (Emergency Planning Proceeding)

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(Shoreham Nuclear Power Station, )

Unit 1) ) May 18, 1984

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ORDER GRANTING TEMPORARY STAY During a telephone conference call on the afternoon of May 18, 1984, we announced our ruling on Suffolk County's Motion to Compel Production of Documents from FEMA. (That ruling was issued, in written Memorandum and Order form, on the same date.) In requesting compelled production of occuments, Suffolk County had cited its need for the information contained therein prior to scheduled depositions of certain FEMA witnesses during the week of May 21, 1984, in order to ultimately conduct effective cross-examination of FEMA witnesses at our hearing

c::ier. Of ":y 29. FEMA resisted the request on the assertion that the documents were protected by executive privilege and that their release would result in a " chilling effect" upon FEMA's decision making process..

Of the 37 documents at issue, we granted compelled discovery as to 30. '

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2 Counsel for FEMA immediately entered an oral application for a stay of the ruling pending appeal, pursuant to 10 C.F.R. s 2.788(g). The Board heard the arguments of all parties to the conference call.

10 C.F.R. 5 2.788(e) sets forth four factors for determining whether to grant or deny an application for a stay. This Board finds that only one factor, the possibility of irreparable injury should a stay not be granted, weighs in favor of granting FEMA's request. We do not find that FEMA has made a strong showing that it is likely to prevail on the merits, nor that the public interest lies on the side of non-disclosure of the subject documents. Furthermore, the grant of a stay would cause inconvenience to Suffolk County. Nevertheless, we believe that the irreparable harm that could occur to FEMA should we require production of these documents before FEMA has had time to enter an appeal of our ruling is in itself significant enough to mandate a brief stay in the interests of fairness. Therefore, we hereby grant a temporary stay of the compelled production of documents pursuant to our Memorandum and Order of May 18, 1984. FEMA will have until 5:00 p.m.

EDT on Monday, May 21 to either have the documents in the hands of Suffolk County or to obtain an additional stay from the Appeal Board.

IT IS SO ORDERED.

ATOMIC SAFETY AND LICENSING BOARD

<. m aw-J 5 A. LAUREN50N, Chairman n/inistrative Law Judge

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