ML20092N597
| ML20092N597 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/29/1984 |
| From: | Monaghan J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8407030322 | |
| Download: ML20092N597 (10) | |
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REL ATED COR RSFONDENCE' LILCO, June 29, 1984 M
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1)
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LILCO'S RESPONSE TO SUFFOLK COUNTY MOTION TO COMPEL PRODUCTION OF TRAINING-RELATED DOCUMENTS BY LILCO P
On June 25, 1984, Suffolk County asked the Board to compel i
Long. Island Lighting Company ("LILCO") to produce documents requested by the County at the hearing on the last day of the tes-timony of the training issues.
The County's request seeks "the results of the June drills." (Tr. 11,970).
LILCO epposes Suffolk County's motion on the grounds that continuing discovery after the close of LILCO's testimony on these issues is inappropriate and contrary to the purpose of discovery, that disclosure of the cri-
.tiques would have a chilling effect on the critique process, and
-that the. request is unduly burdensome at this late stage of the proceedings particularly when Suffolk County after having received copies of other drill critiques failed to establish a pattern with those critiques and failed to provide probative, admissible evi-dence based on the critiques.
STATEMENT OF FACTS On June 1, 1984, pursuant to the Board's order, LILCO 8407030322 840629 PDR ADOCK 05000322
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a produced all critique forms that had been written by controllers and observers at LERO drills and any existing summaries of those critique forms.
Hearings on.he training contentions began some ten days later on June 12, 1984.
On June 13, 1984, Suffolk County attempted to enter into evidence SCEP-65, which the Board described as "a selected subset of forms drawn from a much larger collection of such forms."
Board's ruling denying admission of Exhibit 65 at Tr. 11,559.
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On' June 15, the last day of the LILCO panel's testimony on i
the training contentions, Suffolk County requested discovery of f
the "results of the June drills."
LILCO objected to the request on.the grounds that there is no obligation for continuing discov-ery, that-formal discovery had concluded on October 14, 1983, that discovery related to the issues raised by LILCO's prefiled testi-mony had been provided to Suffolk County and that, since litiga-tion on the issues was well underway, the time for discovery was over.
Based on the apparent disagreement between the parties the i
Board suggested that a motion to compel and briefs be filed.
The testimony of LILCO's witnesses on the training contentions was concluded on June 15, 1984.
(Tr. 12,087).1/
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On. June 22, 1984, counsel for Suffolk County informed councel for LILCO that the County had required no further cross-examination of Mr. Gary J. Berger.
Mr. Berger was the only witness subject to recall at the close of hearing on June 15, 1984.
Suffolk County's decision not to recall Mr. Berger
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for further cross-examination concluded the testimony of LILCO's witnesses on the training contentions.
See Letter to Michael S. Miller from Jessine A. Monaghan dated June 28, 1984.
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. ARGUMENT I.
Discovery Is Inappropriate After The Close Of Testimony The philosophy behind discovery under both the Federal Rules of Civil Procedure and under the Nuclear Regulatory Commission's Rules of Practice is that prior to trial, each party is entitled to disclosure of relevant information "to ascertain the facts in
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complex litigation, [to] refine the issues, and [to] prepare ade-l!
quately for a more expeditious hearing or trial."
Pacific Gas &
f Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978); see also Hickman v. Taylor, 329 U.S.
- 495, l
501 (1947).
As.noted in Wright and Miller's Federal Practice and Procedure Discovery has three distinct purposes and uses.
(1)
.to narrow the issues, in order that at the trial it may be necessary to produce evidence only on a residue of matters that are found to be actually disputed and controverted
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t (2) to obtain evidence for use at the trial (3)- to secure information about the exis-tence of evidence that may be used at
'the trial and to ascertain how and from whom it may be procured, as for instance, the existence,' custody, and i
location or pertinent document or the i
names and addresses of persons having knowledge of relevant facts.
8 C.A. Wright and A.R. Miller,. Federal Practice and Procedure l'2001 (1970).
The County's Motion to Compel Discovery after the l
5 conclusion of the LILCO panel's testimony on the training
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. t contentions is contrary to the purposes of discovery as outlined in Wright and Miller's Federal Practice and Procedure and in the case law.
Discovery of the June critique forms now that the tes-timony of the LILCO panel is concluded will not serve to narrow the issues that need to be tried, nor will not provide evidence for use at the hearing, and will not secure information about the existence of evidence.
The County has already had its day in court and in fact has cross-examined the LILCO training panel for three and one-half days.
Additional discovery long after the close of formal discovery and October 14, 1983, and after the hearinga. on the issues have concluded, will not produce evidence that will either assist the County in preparing for hearings or will produce evidence for trial.
This is particularly true.in the case of the critique forms since the County failed utterly to make use of the-numerous critique forms already in its possession to
-provide the Board with admissible probative evidence.
The Coun-ty's request for additional discovery at this time is inappropri-ate and is calculated to burden and harass LI'CO with the produc-L tion of volumes of unuseable documents.
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II.
Discovery Would Have A Chilling Effect on Future Critiques LILCO is engaged in an ongoing drill and exercise program which is constantly being evaluated to improve both the Plan and the training program.
The drills conducted in June are only some cf many that will be conducted and critiqued in the next months.
Continuing discovery of completed critique forms even after the
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. litigation of those issues is closed does violence to the sound policy of encouraging self-evaluation and will have a chilling effect on the candor of future analyses and critiques.
Exempting self-critical analysis'from discovery is not unprecedented.
The " critical self-analysis privilege" has been applied in Title VII cases where defendant corporations have have not been to disclose self-critical analyses forming the bases of affirmative action plans and EEO-I plans.
Mazzella v. RCA Global Communications, Inc., 83-Cir.-3716 (Slip op. March 28, 1984);
McClain v. Mack Trucks, Inc., 85 F.R.D. 53 (E.D. PA 1979).
The self-critical analysis privilege has also been applied to exempt from discovery minutes and reports of hospital committee meetings where physicians have reviewed and analyzed an individual physi-cian's treatment and care of patients.
Bredice v. Doctors Hospital, Inc., 50 F.R.D.
249, 250-51 (D.D.C.), aff'd on rehearing, 51 F.R.D.
187 (D.D.C. 1970), aff'd, 479 F.;2d 920 (D.C.
Cir. 1973).
The rationale for.the self-critical analysis privi-lege, which is that discovery of such analyses would lead to a
-lack of candor and a minimization of the goals to be reached, is equally applicable to the instant critiques.
The chilling effect that discovery would have on the cri-tiques performed by drill observers and controllers is acknowl-edged by Commissioner Roberts' additional views and concurred with by Commissioner Ahearne in the Indian Point case.
The Indian Point licensing board had ordered that,intervenors'
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i representatives'be permitted to observe the emergency planning ex-I ercise and required preservation of draft reports prepared by per-f sonnel involved in the emergency planning exercise.
The Commis-
.sion reversed the Licensing Board's decision to permit personal observation by intervenors, but did not overturn the order with r
L respect to reports.
Commissioner Roberts and Commissioner Ahearne expressed the view that the practice of preserving draft reports i
should not be continued:-
Draft handwritten notes by one observer of an emergency exercise, standing by themselves, are i
incomplete and can be misleading.
An observer may not know until after the exercise and after t..
_ discussion with other participants in the exer-cise all that was going on during the exercise.
Thus, comments jotted down by an observer
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whether favorable or unfavorable, may not be accurate.
Due to this limitation, handwritten notes and drafts are ordinarily destroyed after preparation of the exercise report.
- Moreover, it is my understanding that many observers would t
not take notes of an exercise if_ required to preserve and distribute them.
This would result
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in the preparation of-exercise reports based on l
unrecorded observations.
'As such reports might i
be less complete, I do not believe that it is in the NRC's interest that licensing boards require the staff and FEMA to preserve and distribute
. handwritten notes written during an emergency exercise.
I Consolidated Edison Co. (Indian Point, Unit 2), Power Authority of t
the State of New York, (Indian Point, Unit 3), Docket No.
l 50-247-SP, 50-286-SP, slip op, additional views of Commissioner Roberts, at 3-(August 20, 1982).
The County's request to receive all of the June critique forms and subject them to the close scru-tiny of litigation is certain to have an undesirable chilling i
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, o effect on persons engaged in the drill and exercise critique pro-
. cess for LILCO.
III.
The Request Is Unduly Burdensome At this late stage of the proceedings, Suffolk County's o
request for discovery of the June drill critique forms is unduly burdensome.
The requests smacks of a fishing expedition to raise an issue when, after having discovered the same type of critique forms for the drills held in the fall of 1983 and the winter of 1984, Suffolk County was unable to establish a pattern with those critiques and failed to provide the Board with probative, admissi-ble evidence based on the critiques.
There must be a conclusion to both litigation and discovery leading to litigation.
The discovery the intervenors seeks to compel with-this motion was requested subsequent to the conclusion by Suffolk County of its cross-examination of LILCO on the training contentions.
If the Board were to grant the County dis-covery at this point, then the logic of its decision..would subject nearly every party enjoying the benefits of having concluded liti-
'gation on issues to a. perpetual duty to endure discovery until an initial decision was reached.
To permit ongoing discovery at this 7
stage would be to place the County in the position of a court-appointed master to oversee LILCO's training program.
Suffolk County is inappropriate as a policing agency in this circumstance.
L The Federal-Emergency Management Agency (FEMA) is the entity that is charged with the continuing duty of overseeing the performance 4
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of all offsite emergency response organizations, including LERO at j
i annual FEMA-graded exercises.
The Board should not permit Suffolk i
County, an-intervenor in this proceeding, to put on regulatory garb and atterapt to police the performance of LERO through con-tinuing discovery.
Raspectfully submitted, LONG ISLAND LIGHTING COMPANY r
14g$4'M k M
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James N.
Christman Jessine A. Monag n
Hunton &. Williams Post Office Box 1535 i
Richmond, Virginia 23212 DATED:
June 29, 1984 l
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LILCO, June 29, 1984 CERTIFICATE OF SERVICE i
in the-Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
(Emergency Planning Proceeding)
Docket No 50-322-OL-3 I certify that copies of LILCO'S RESPONSE TO SUFFOLK COUNTY MOTION TO COMPEL PRODUCTION OF TRAINING-RELATED DOCUMENTS BY LILCO were served this date upon the following by first-class mail.
James A. Laurenson, Secretary of the Commission Chairman U.S.
Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory
}
Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R.
Kline Atomic Safety and Licensing
, Atomic Safety and Licensing l
Board Board Panel U.S.. Nuclear Regulatory U.S.
Nuclear Regulatory l
Commission
^ Commission East-West Tower, Rm. 427' Washington, D.C.
20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M.
Bordenick, Esq.
Oreste Russ Pirfo, Esq.
[
Mr. Frederick J.
Shon Edwin J.
Reis, Esq.
Atomic Safety and Licensing U.
S.
Nuclear Regulatory i
Board Commission
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U.S. Nuclear Regulatory ~
7735 Old Georgetown Road Commission.
(to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814
'4350 East-West. Hwy.
Bethesda, MD 20814 Stewart M. Glass, Esq.
Regional Counsel Eleanor L. Frucci, Esq.
Federal Emergency Management-Attorney Agency Atomic Safety'and Licensing' 26 Federal Plaza, Room 1349 Board Panel New York, New York 10278 U.
S. Nuclear Regulatory Commission Stephen B.
Latham, Esq.
East-West Tower, North Tower John F.
Shea, Esq.
4350 East-West Highway Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O.
Box 398 Riverhead, NY 11901 1
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. Fabian G.
Palomino, Esq.
Ralph Shapiro, Esq.
Special Counsel to the Cammer & Shapiro, P.C.
Governor 9 East 40th Street Executive Chamber New York, New York 10016 Room 229 State Capitol James B. Dougherty, Esq.
Albany, New York 12224 3045 Porter Street Washington, D.C.
20008 Herbert H. Brown, Esq.
Lawrence C-; e Lanpher, Esq.
Jonathan D.
Feinberg, Esq.
Christopher M. McMurray, Esq.
New York State Public Service Kirkpatrick, Lockhart, Hill Commission, Staff Counsel Christopher & Phillips 3 Rockefeller Plaza 8th Floor Albany, New York 12223 1900 M Street, N.W.
Washington, D.C.
20036 Spence W.
Perry, Esq.
Associate General Counsel MHG Technical Associates Federal Emergency Management 1723 Hamilten Avenue Agency Suite K 500 C Street, S.W.,
Rm. 840 San Jose,. California 95125 Washington, D.C.
20472-Mr. Jay Dunkelberger Ms. Nora Bredes New York State Energy Office Executive Coordinator Agency Building 2 Shoreham Opponents' Coalition Empire State Plaza 195 East Main Street Albany, New York 12223 Smithtown, New York 11787 Gerald C.
Crotty, Esq.
Martin Bradley Ashare, Esq.
Counsel to the Governor Suffolk County Attorney Executive Chamber H.
Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 M'44 Se Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
June 29, 1984
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