ML20091L118
| ML20091L118 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/05/1984 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | |
| References | |
| OL-3, NUDOCS 8406070339 | |
| Download: ML20091L118 (8) | |
Text
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g3 LILCO, June 5, 1984
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UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION
'84 JD1 -7 Af0 :42 Before the Atomic Safety and Licensing AppealrBoard-
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning Proceeding)
(Shoreham Nuclear Power Station, )
Unit 1)
)
LILCO'S MEMORANDUM ON RESTRICTIONS ON COMPELLED DISCOVERY OF OTHER FEDERAL AGENCIES IN NRC PROCEEDINGS This Board's May 30, 1984 Order requested parties to address (1) the permissibility and (2) the advisability of one federal agency's requiring another to disclose documents in the context of an NRC licensing proceeding.
The Order requested that the discus-sions address the question both generally and with reference to the November 4, 1980 Memorandum of Understanding between NRC and FEMA, 45 Fed. Reg. 82713 (1980).
1.
Permissibility of. Requiring Production of Documents by Another Federal Agency The NRC possesses authority under S 161(c) of the Atomic En-ergy Act to require the appearance of, and production of documents by, any " person"; the term " person", at & ll(s) of the Act, in-cludes any'" Government agency other than the Commission."l/
42 1/
The " Government" being referred to is apparently_the fed-eral government, cf. AEA $ 11(a), defining " agency of the Unit-(Footnote continued) 8406070339 840605
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U.S.C. 55 2201(cI), 2014(s).
The Commission has implemented this power in its Rules of Practice with respect to issuance of subpoenas in 6 2.720, and with respect to discovery in adjudicatory proceedings in SS 2.740 (general), 2.740a (depositions), and 2.741 (production of docu-ments).
The Commission's regulations establish further protec-tions regarding compelled discovery against NRC personnel by sub-poena ($ 2.620(h)), discovery generally (59 2.740(f)(3),
2.720(h), 2.744), depositions ($$ 2.740a(j), 2.720(h)), and pro-duction of documents ($$ 2.741(e),
2.744).
FEMA personnel, when reviewing an emergency response plan in an NRC licensing proceed-ing pursuant to the NRC-FEMA Memorandum of Understanding, have al-ready been held in this case to be acting as NRC consultants, and thus entitled to the same protections on discovery as NRC person-nel.
Long Island Lighting Company (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-83-81, 18 NRC 700, 703-04.
See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-519, 9 NRC 42, 43 note 2 (1979) (as applied to ACRS).
Absent a claim of privilege, therefore, discovery against an-other agency than-the NRC would be governed under the Commission's (Footnote continued) ed States" as including "any Government agency."
44 U.S.C.
.$ 2014(a).
The " persons" to whom the Commission's subpoena power extends also include "any State or any political subdivi-sion of, or any political entity within a State.
." 42 U.S.C. $ 2014(s).
. regulations, layeither the general discovery rules or by those ap-plicable to NRC personnel.2/
2/
At least one Atomic Safety and Licensing Beard has re-quired another federal agency to produce documents over an as-sertion of privilege.
Houston Lighting and Power Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP 30, 10 NRC 594 (1979).
In that brief opinion, the Licensing Board granted the applicant's motion to compel production of drafts of expert testic'ony which had been sent to counsel at the Justice Department for review, over an assertion of privi-lege (whether the attorney-client or lesser attorney work prod-uct privilege cannot be discerned from the opinion).
In that case, however, the opinion strongly suggests the presence of special facts going to the independence of the expert opinions there being proffered and the possibility of undue influence by counsel:
The causes of potential bias of a witness are not sanitized because they emanate from or involve counsel; in fact, the converse may be true.
The objectivity of expert opinions might be subject to question.if witnesses are indeed expected by counsel to be " attempting to reconcile [new] information with his ear-lier conclusions,"l/ or to " defend and explain conclusions which even when recorded he may not have endorsed."2/
A witness is not expected to be so supple concerning pro-spective testimony under oath, whether writ-ten or oral.
If our ruling does indeed have a " chilling effect" upon possible complaisant witnesses, that is all to the good.
1/
Answer of the Department of Justice In Opposition to the Motion of HL&P to Com'pel Production by the Department of Justice of Certain Drafts of Testimony Prepared by William E.
Scott, p.
12.
2/-
Id.,
at 13.
j Applying that case to the present one, its analysis is consistent with LILCO's belief that the NRC's power to order discovery ex-tends to discovery against other agencies.
However, the special (Footnote continued)
O
k The workiny relationship between NRC and FEMA regarding li-
~ censing review of emergency response plans is addressed at 10 CFR
$ 50.47(a)(2) and in the Memorandum of Understanding, particularly l
paras. II and III.A.
While these discussions allocate responsi-I bility between FEMA and NRC for various sub-aspects of emergency plan review and establish a consultative and collaborative rela-tionship, nothing in these sections provides a clear ground for l
altering otherwise applicable ~ discovery standards.
Research has not disclosed any rules or doctrines beyond those noted above that restrict, as a matter of law, access to discovery against other federal agencies in NRC proceedings, or affect, as a matter of law, determinations of interagency claims of executive privilege.
2.
Advisability of Requiring Production of Documents by Another Federal Agency The internal integrity of any agency's functioning is a mat-ter recognized as deserving legal protection; this is the genesis of the notion of. executive privilege.
In agency proceedings, nor-mally the agency claiming executive privilege is the same agency as that hearing the claim.
In that case, the tribunal can be (Footnote continued) facts apparent in thac case make its result inapplicable here, where there has been no assertion, much less any showing, of ir-
- regularities in the RAC process that would justify intrusion into it (as distinguished from probing the factual and analytical sup-port for the RAC Report);
L_
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- 4. expected to havd some expert, if informal, sense of the agency's dynamics, goals and sensitivities and thus be able to make in-formed judgments about the strength of the agency's claims.
In addition, long-term internal agency corrective r..echanisms operate to even out the effects of aberrant decisions.
When an agency tribunal is called upon to hear the internal claims of privilege of another agency, truly expert knowledge can no longer be presumed and long-term self-righting mechanisms can-not be assumed to function so smoothly.
In addition, the situa-tion may be further complicated by the existence of relatively complex collaborative arrangements (such as that between NRC and FEMA set in motion by the Memorandum of Understanding) which pre-sume the due regard and deference for other, independent partici-pants' sensibilities that is inherent in productive voluntary ar-rangements.
The continued functioning of NRC and FEMA under the Memorandum of Understanding must be presumed to be a policy goal of both agencies, and FEMA's representation about the threat to the functioning of its Regional Assistance Committees from disclo-sure of the documents at issue cannot lightly be disregarded.
Nevertheless, the executive privilege is a qualified one; and an agency aggrieved by an adverse decision before another agency still has access to the courts.
Interagency claims of executive privilege require, both as a matter of comity and. good sense, that the agency called upon.to adjudicate them give high presumptive deference to the full
q (a; measure of the' factual allegations of harm by the agency asserting them (particularly where, as here, they are essentially unrebutted).
However, if that allegation of harm, so measured, is overcome-by the demonstrated need for the material sought to be discovered, notions of interagency comity and deference alone should not automatically bar discovery otherwise available by law.
Respectfully submitted, LONG ISLAND LIGHTING COMPAIN i.
Donald P.
Irwin Lee B.
Zeugin HUNTON & WILLIAMS P.O.
Box 1535 707 East Main Street Richmond, Virginia 23212 DATED:
Jiane 5, 1984 s
b LILCO, June 5, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
(Emergency Planning Proceeding) Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S MEMORANDUM ON RE-STRICTIONS ON COMPELLED DISCOVERY OF OTHER FEDERAL AGENCIES IN NRC PROCEEDINGS were served this date upon the following by first-class mail, postage prepaid, or by hand (one asterisk),
or telecopier (two asterisks).
Alan S.
Rosenthal, Esq.,*
Gary J.
Edles, Esq.*
Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, 3rd Floor East-West Tower, 3rd Floor 4350 East-West Highway 4350 East-West Highway Washington, D.C.
20555 Washington, D.C.
20555 Secretary of the Commission Howard A. Wilber*
U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, 3rd Floor Appeal Board Panel 4350 East-West Highway U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 James A.
Laurenson,*
Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 East-West Tower, Rm. 402A 4350 East-West Hwy.
Bernard M. Bordenick, Esq.*
Bethesda, MD 20814 Edwin J.
Reis, Esq.
U.S. Nuclear Regulatory Dr. Jerry R. Kline*
Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Bethesda, MD 20814 Commission East-West Tower, Rm. 427 Stewart M. Glass, Esq.**
4350 East-West Hwy.
Regional Counsel Bethesda, MD 20814 Federal Emergency Management Agency Mr. Frederick J. Shon*
26 Federal Plaza, Room 1349 Atomic Safety and Licensing New York, New York 10278 Board U.S. Nuclear Regulatory Commission East-West Tower, Rm. 430 4350 East-West Hwy.
Bethesda, MD 20814
r ~
Eleanor L.
Frucc'i, 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 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 Albany, New York 12224 J
Donald P.
Irwin Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
June 5, 1984
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