ML20091A802

Response to FEMA Appeal of ASLB 840518 Order Ruling on Suffolk County Motion to Compel Production of Documents. Aslab Should Reverse ASLB Decision.Certificate of Svc Encl.Related Correspondence

ML20091A802
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/23/1984
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
OL-3, NUDOCS 8405300092
Download: ML20091A802 (10)

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RELATED CORaESPONDENCE LILCO, Ma'y 23 ~ 1984 l

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UNITED, STATES OF AMERICA

'84 NAY 25 A10:34 NUCLEAFJ > REGULATORY COMMISSION lC T.};}.; '

Before the' Atomic Safety and Licensing Appeal. Board In the Matter'of r' '

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LONG ISLAND LIGHTING COMPANY ) Docket Ne,.:.- 50-322-OL-3

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(Shoreham Nuclear / Powg.r Station, ) , j r

Unit 1) ,. )

LILCO'S RESPONSE TO FEMA'S APPEAL OF, ,

MAY 18, 1984 ASLB DISCOVERY ORDER'ON RAC DOCUMENTS Pursuant to the Appeal Board's telephone order of May 21, 1984 extending the Atomic Sa'fety and Licensing Bo,ard's stay of; .

its May 18, 1984 " Memorandum and Order Ruling on Suffolk Countiy' Motion to Compel Production of' Documer$ta by FEMA" (" Licensing Board Order") thrcugh the morning of May 23.and requiring writ '

ten submissions by 9:00 a.m. Inat day,.Long I'sland Lighting .

Company responds as follows 'to FEMA's May 21, 1984 notice of -

appeal'and to FEMA's " Memorandum in Support of FEMA's Appeal of an Order of the [ASLB] and Reque'st for a Stay."

The current discovery dispute is nominally between' FEMA

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and Suffolk County. LILCO is potentially affected, however, by its outcome ~since the involvement of FEMA's Regional Assistance Committee (RAC) in emergency planning at Shoreham is not com-plete. 'In addition to providing testimony through its Chairman 9405300092 ppR ADOCK 0500032 840523 9

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o in the ongoing hearings at Shoreham, the RAC will have to eval-uate LILCO's corrections of the 32 deficiencies listed in the RAC's March 15, 1984 evaluation of the LILCO Transition Offsite Emergency Plan for Shoreham (the "RAC Review"). The RAC will thereafter observe and grade an exercise for Shoreham. Thus LILCO has a vital interest in the ability of the RAC to func- l tion efficiently and effectively, and would be damaged by any i events that crippled that functioning. Since the affidavits of Drs. Kowieski and McIntire attached to FEMA's appeal papers, as well as the earlier affidavit of FEMA's Director, Louis O.

Giuffrida, all assert such an impairment of FEMA's functioning if RAC deliberative documents are released, LILCO is concerned that the Appeal Board weigh carefully all appropriate factors -

before compelling an independent federal agency serving as a consultant to the NRC to release documents it considers neces-sary to protect.

LILCO has not, of course, seen the 30 documents in ques-tion 1/ and therefore will not attempt to make arguments based-on their actual contents. However, the Licensing Board upheld FEMA's claim that the documents were entitled to executive privilege, against suffolk County's arguments to the contrary.

Licensing Board Order at 6. Thus the only question before the 1/ Of the 37 documents sought to be protected by FEMA, the Licensing Board's Order'of May 18 required the release of 30 and protected 7 against disclosure. Thus the actual number of documents at issue is now 30.

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J Appeal Board is whether the privilege is overcome in the cir-cumstances of this case.

The generally accepted means for deciding whether execu-tive privilege can be overcome with respect to documents is to determine whether a compelling need has been shown by the party

- seeking the information contained in the documents in question, and if so, to balance that need against the agency's need to Long Island Lighting Company preserve confidentiality.

(Shoreham Nuclear Power Station), LBP-83-72, 18 NRC 1221, 1227-28 (1983). In determining the need of a party seeking discov-ery to the documents, the availability of other means of ob-taining the same or equiv alent information, and the importance of the information in the documents themselves to the party's case, should be considered. Long Island Lighting Company (Shoreham Nuclear Power Station), LBP-82-82, 16 NRC 1144, 1164-65 (1982).

In the current dispute, the facts do not demonstrate a .

compelling need to overcome an admittedly well-founded asser-tion of executive privilege. The 30 documents in question are not the only means available to, or availed by, Suffolk County to obtain discovery of FEMA. Suffolk County filed with FEMA, on April 4, 1984, a broad Freedom of Information Act request l concerning Shoreham; on May 1, 1984, FEMA complied, disgorging a 1130-page stack of documents approximetely six inches high.

Some forty of these documents were subsequently designated by l

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FEMA as being directly responsive to Suffolk County's motion to compel production.of documents relating to the RAC Review.

FEMA's Response to Suffolk County Request for Production of Documents, May 14, 1984, at 1-4. At the same time FEMA desig-nated, and provided to Suffolk County, eight additional docu-ments relating to the RAC Review. Id. at 4-5.

Furthermore, even this extensive document discovery is not Suffolk County's sole basis for discovery _of FEMA: the agency has agreed to make available FEMA witnesses (RAC Chairman Dr.

Roger Kowieski, Regional Division Chief Dr. Philip McIntire) and RAC consultants (Joseph Keller of INEL, Peter Baldwin of ANL) for two days of depositions. The depositions will appar-ently take place as soon as they can be scheduled following the 4 Appeal Board's decision in this matter. In short, the 30 docu-ments at issue contain merely a corner of the information on the RAC's review of the Shoreham Emergency Plan available to Suffolk County.

A second aspect of inquiry into the existence of " compel-ling need" consists of the centrality of the documents in ques-tion to the issues available for litigation. At Shoreham, those issues are framed by the contentions of the parties, not by the RAC Review. The parties have been in hearings nearly continuously on these contentions since_early December 1983 on the basis of several. thousands of pages of prefiled testimony, with several more weeks of hearings likely. The mere fact that l-l l'

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. i q many of the contentions are framed in terms of asserted viola-tions of NUREG-0654 does not necessarily shift the center of gravity of the proceeding, nor of Suffolk County's own case, to the RAC Review, even though it also is framed in terms of com-pliance with elements of NUREG-0654. Much less does the center of gravity shift to the predecisional opinions and observations of individual RAC members: while the RAC Review is attached to and relied on by FEMA in its direct testimony, it is still a collegial, consensus document. There is no reason to believe a priori that the conclusions in FEMA's testimony, including the RAC Review, cannot be probed adequately through the document discovery already had, plus two days of depositions, only then followed by cross-examination in open hearings.

Against this less-than-clear demonstration of " compelling need" is the uncontroverted certainty, expressed in three affi-davits of FEMA employees, of delays and disruptions in the RAC process. Here, as the affidavits point out, FEMA and its RAC work continuaily with, and critique, members of State and local governments. The inability to protect the confidentiality of predecisional observations is asserted to have an inevitably chilling effect on the agency's ability to carry out its func-tions. free of undue pressure. While LILCO cannot appraise this assertion independently, it should not be overlooked by the Ap-peal Board.

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e The FEMA affidavits also note that numerous RAC members

-and consultants are not FEMA employees. The Licensing Board acknowledged this fact, Licensing Board Opinion at 8, but ap-pears to have misunderstood it. While the fact that a RAC mem-ber or consultant is not a FEMA employee may alleviate intra-

- FEMA pressure on him or her, it also means that FEMA cannot ensure that RAC member's cooperative participation in RAC mat-ters in an atmosphere of contention.

With respect to the merits of FEMA's appeal, the ready availability elsewhere of massive information about FEMA and the RAC review, from'other documents and depositions, suggests strongly that a'" compelling need" cannot be shown by Suffolk County for the 30 documents at issue. However, the Licensing Board's Order, despite its recognition of'the relevance of the actual importance of the documents at issue and of the avail-ability of the information elsewhere in determining " compelling need" (Licensing Board Order at 4), makes no' reference to ei- .

ther the other documents already provided to suffolk County or J

to the availability of depositions. (Indeed, in apparently considering, and rejecting, cross-examination at the hearing as a substitute for release of the documents'at issue (id. at 4-5), the Licensing Board ignored the function of depositions en-

-tirely).

LILCO believes that the Licensing Board's failure to ana-lyze the necessity for compelled release of the 30 RAC

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documents in the context of the other discovery available to Suffolk County for penetrating the FEMA /RAC evaluative process, and its apparent evaluation of the 30 documents as though they were the only documents bearing on that subject, was error.

Part of the process in determining whether to overcome a privilege is examinati i of the other available means of providing the information sought. The Licensing Board's Opin-ion, while acknowledging that test, reveals no evidence of having applied it. LILCO believes that that failure, whether one of articulation or substance, was wrong and that the docu-ments should thus not have been ordered t' be released.

Further, the affidavits,of Messrs. Kowieski and McIntire 4

substantiate the assertion of harm to the RAC process from re-lease of the 30 RAC documents made initially in the affidavit of General Giuffrida. The Licensing Board did not have these later affidavits before it; thus its finding of harm to the agency from disclosure of the 30 documents at issue could not have comprehended this additional level of detail and extent of asserted harm. However, these affidavits would appear to af-feet substantially the measure of harm to FEMA from compelled release- of the RAC documents, and weigh against any release of the 30 requested documents.

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CONCLUSION l

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LILCO, having not seen the documents at issue, cannot opine on factual issues in this matter. However, the Licensing Board clearly failed to articulate (and apparently to consider) the-30 RAC documents at issue in context; and the late-filed

- affidavits before the Appeal Board substantiate and expand the Under the circumstances, measure of harm to FEMA from release.

LILCO believes that the Licensing Board was incorrect in concluding that Suffolk County had demonstrated " compelling need" for the 30 RAC documents, or that such a need as may exist outweighs ~ FEMA's interest in preservation of their confi-dentiality. LILCO urges that the Appeal Board reverse the Li-censing Board's decision and order that the documents not be required to be released.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY o

Donald P. Irwin l HUNTON & WILLIAMS P.O.' Box 1535 707 East Main Street

-Richmond,_-Virginia 23212 l

DATED: May.23, 1984 l

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LILCO, May 23, 1984 CERTIFICATE OF SERVICE b(([

In the Matter of LONG ISLAND LIGHTING COMPANY ag4 MT25 (Shoreham Nuclear Power Station, Unit 1) 410 :3 4 (Emergency Planning Proceeding) Docket No.!60-322-OL-3

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I hereby certify that copies of LILCO'S RESPONBEftmd FEMA'S APPEAL OF MAY 18, 1984 ASLB DISCOVERY ORDER ON RAC DOCUMENTS were' served this date upon the following by first-class mail, postage prepaid, or by hand (one asterisk), or by telecopier

. (two asterisks).

Alan S. Rosenthal, Esq.,* Gary J. Edles, Esq.*

Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. . Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Secretary of the Commission Howard A. Wilber* U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory James A. Laurenson,* Commission Chairman Washington, D.C. 20555 Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory East-West Tower, Rm. 402A Commission -

4350 East-West Hwy. Washington, D.C. 20555 Bethes'da, MD 20814 Bernard M. Bordenick, Esq.*

Dr. Jerry R. Kline* David A. Repka, Esq.

Atomic Safety and Licensing Edwin J. Reis, Esq. tory Board- U.S. Nuclear Regulatory U.S. Nuclear Regulatory- Commission 1 Commission 7735 Old Georgetown Road East-West Tower, Rm. 427 Bethesda, MD 20814 4350' East-West Hwy.

Bethesda, MD '20814 Stewart M. Glass, Esq.*

Regional Counsel.

Mr. Frederick J. Shon* -Federal Emergency Management.

Atomic Safety and Licensing Agency Board 26. Federal Plaza,. Room 1349 U.S. Nuclear Regulatory New York, New York 10278

-Commission East-West Tower, Rm. 430 4350 East-West ~ Hwy.

-Bethesda,.MD 20814'

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Eleanor L. Frucci, Esq.* Stephen B. Latham, Esq.*

Attorney Twomey, Latham & Shea Atomic. Safety and Licensing 33 West Second Street Board Panel Post. Office Box 398

U. S. Nuclear Regulatory Riverhead, NY 11901 Commission-East-West Tower,_ North Tower Ralph Shapiro, Esq.*

4350 East-West Highway Cammer & Shapiro, P.C.

Bethesda, MD 20814 9 East 40th Street New York, New York 10016

- Fabian G. Palomino, Esq.**

Special Counsel to the James B. Dougherty 3045 Porter Street 3045 Porter Street Governor Washington, D.C. 20008 Executive Chamber '

Room 229 Johnathan D. Feinberg, Esq.*

State Capitol New York State Public Service Albany, New York 12224 Commission, Staff Counsel 3 Rockerfeller Plaza Herbert H. Brown, Esq.* Albany, New York 12223 Lawrence Coe Lanpher, Esq.

Christopher M. McMurray, Esq. Spence W. Perry, Esq.*

Kirkpatrick, Lockhart, Hill Associate General Counsel 4 Christopher & Phillips Federal Emergency Management 8th Floor Agency 1900 M Street, N.W. 500 C Street, S.W., Rm. 840 Washington, D.C. 20036 Washington, D.C. 20472 Mr. Marc W. Goldsmith Ms. Nora Bredes Energy Research Group Executive Coordinator 4001 Totten Pond Road Shoreham Opponents' Coalition

, Waltham, Massachusetts 02154 195 East Main Street Smithtown, New York 11787 MHB Technical Associates 1723 Hamilton Avenue Martin Bradley Ashare,-Esq.

! Suite K _Suffolk County Attorney San Jose, California 95125 H. Lee Dennison Building Veterans Memorial Highway Mr. Jay Dunkleberger Hauppauge, New York 11788 New York State Energy Office Agency. Building 2 Gerald C. Crotty, Esq.

Empire State Plaza Counsel to the Governor Albany, New York 12223 Executive Chamber

. State Capitol' ,

i Albany, New York '12224 k.

< , l Donald P. Irwin Hunton &. Williams 707 East-Main Street

' Post-Office Box 1535 Richmond, Virginia -23212:

DATED: .May 23,'1984 ~

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