ML20094L721

Response to Suffolk County Motion for Directed Certification of ASLB 840710 Order Which Denied Suffolk County Request for Production of Documents Dealt W/In Aslab 840613 Order ALAB-773.Certificate of Svc Encl.Related Correspondence

ML20094L721
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/10/1984
From:	Glass S Federal Emergency Management Agency
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ALAB-773, OL-3, NUDOCS 8408150443
Download: ML20094L721 (14)

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RELAT ED CC;;RGPCTIDENCE 4

INITED STATES OF MERICAN 00 3 O NUCIEAR REGULA'IURY COeNISSICN USN F

BEEDRE 'IEE A'IOMIC SAFE 1Y AND LICENSING BOARD APPEAL BOARD 0 15 40:51 In the Matter of '0 IE b' L Tj,D~

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) - ' , ,1 IDNG ISIAND LIGfrIN3 COMPANY ) Docket No. 50-322-OL-3 ,

) (Dnergency Planning)

(Shoreham Naclear Power Station, )

Unit 1)

FEMA'S RESIDNSE 'IO SUFEDUC CJUNIT'S MJrION EUR DIRECTED CERTIFICATI(N T THE A'KMIC SAFErY &

LICENSING BOARD'S ORDER OF JULY 10, 1984

'1he matter before the Boani presents a limited questicri of whether the criteria for granting directed certification of a July 10, 1984 order issued by the Atcmic Safety and Licensing Board (ASLB) has been met. '1he ASIB's order of July 10, 1984 denied Suffolk (bunty's request for 1) the production of the thirty docunents previously dealt with in the Atcmic Safety arri Licensing Appeal Board's (AIAB) order of June 13,1984 (AIAB-773), 2) the personal rotes of Ibger B. Kowieski, 3) the issuance of subpoenas to the RAC members and

4) postponenent of the scheduled (August 14-17) appearance of the EINA witness panel before the ASLB.

'1he instant issue before this Board is whether the criteria for granting directed certificatiot of the Licensing Board order is met. Suffolk 0)unty has not sustained its burden in this matter.

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Discussion

'Ihe regulations of the Nuclear Regulatory indicate there is no right of appeal of an interlocutory ruling by the ASIB to the Appeal Board (10 CFR 2.730(f) and 10 CFR 2.785(a)(1) In extraordinary circunstances the AIAB does have the power to review interlocutory rulings by a petition for directed certification of legal issues raised in pwceedings still pending before the ASIB (10 CFR 2.718(i) and 10 CFR 2.785(b)(i). Consuners Power Co. (Midland Plant, Units 1 and 2), AIAB-541, 9 NRC 436, 437 (1979) .

'Ibere might be warrant for treatirg in a 10 CFR $ 2.730 moticn for interlocutory appeal filed by a lay person unfamiliar with the Rules of Practice alternatively as a petiticn seeking directal certificaticn under 10 CFR { 2.718(i). Pennsylvania Power and Light Capany and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1&2), AIAB-563, 10 NRC 449 (1979).

Directed certification "is to be resorted to only in exceptional circunstances." Consuners Power Co. (Midlard Plant, Units 1&2), ALAB-382, 5 NBC 603 (1977) and is granted by Appeal Boards "most sparingly". Pacific G&E Co. (Diablo Canyon Nuclear Power Plant, Units 1&2), AIAB-514, 8 NBC 697, 698 (1978);' Pacific G&E Co. (Diablo Canyon Nuclear Power Plant, Units 1&2), AIAB-504, 8 NRC 406, 410 (1978).

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• A party seeking directed certification nust, at a mininun, establish that a referral under 10 CFR { 2.730(f) would have been proper i.e., that failing a resolution of the problan the public interest will suffer or unusual delay or expense will be encountered. P.S. Co. of N.H.(Seabrook Station, thits 1&2),

AIAB-271,1 NRC 478, 483 (1975); Toledo Edision Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975).

Alnost without excepticn in recent times, the Appeals Board's have undertaken discretionary interlocutory review cnly sparingly, and then only when the licensing board's action either (1) threatened the party adversely affected by it with innediate and serious irreparable harm Wilch, as a practical matter, muld not be alleviatal by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner. Public Service Electric & Gas Co. (Salen Nuclear Generating Station Unit 1), AIAB-588, 11 NRC 533, 536 (1980). P.S. Co. of Ind., Inc. (Mirble Hill Nuclear Generating Station), AIAB-405, 5 NRC 1190,1192 (1977); Accord, S.C.E.&G. Co. (Virgil C.

Stmner Wclear Station, Unit 1), AIAB-663,14 NRC 1140,1162 (1981); Houston Lighting and Power Co. (Allen's Creek Nuclear Generating Station), ALAB-635,13 NRC 309, 310 (1981); Houston Lighting & Power Co. (South Texas Project, thits 1&2), ALAB-608, 12 NRC 168, 170 (1980); Id., AIAB-637,13 NIC 367, 370 (1981) .

Offshore Power Systems (Floating Wclear Power Plants), ALAB-517, 9 NRC 8,11 (1979); P.S. EEG Co. (Salem mclcar Generating Station, Unit 1), ALAB-588,11 NRC 533, 536 (1980), Pa. P&L Co. (Susquehanna Steam Electric Station, Units 1&2), AIAB-593,11 NRC 761 (1980); Puget Sound P&L Co. (Skagit Nuclear Power Project, Units 1&2), AIAB-572,10 NRC 693, 694 (1979). Indeed, it has been

repeatedly stated that discovery orders will only very rarely merit directed certification. Houston Lighting & Power Co. (South Texas Project, Units 1&2),

AIAB-608, 12 NRC 168, 170 (1980); Houston Lighting & Power Co. (Allen's Creek Generating Station Unit 1), ALAB-409,12 NRC 172 (1980); Consumers Power Co.

(Midland Plant, Units 1&2), AIAB-634,13 NRC 96 99 (1981).

'Ihe aggrieved party nust make a strong showing that the impact of the discovery order upcn that party or upon the public interest is indeed unusual.

Constzners Power Ccmpany (Midland Plant, Units 1&2), ALAB-438, 6 NRC 638 (1977). Suffolk (bunty has not sustained its burden in this matter.

Suffolk (bunty contends it is entitled to 1) the production of the thirty doctments previously dealt with in the Atanic Safety and Licensing Appeal Board's ( AIAB) order of June 13,1984 (AIAB-773), 2) the personal rotes of Ibger Kowieski, 3) the issuance of subpoenas to the RAC members and 4) post-

, ponement of the scheduled (August 14-17) appearance of the FEMA witness panel before the ASIB. In support of this contenticn it alleges that it did not have an opportunity to ascertain the reasons for end the substance of the various RAC mmbers " dissenting" opinions on specific findings (Suffolk County Brief, at 10).

'1 hough, a full argtment on the facts is premature at this time, a nmber of factual issues & need to be clarified. FDR voluntarily made its witnesses available for deposition pursuant to agreements with Suffolk (bunty. Suffolk j i

! County clearly adntits in its pleadings that FDR's witnesses created personal  !

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notes in preparation of their depositions (Suffolk (bunty Brief, at 9&l0).

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'1 hough m was under no obligaticn to create these notes, it did so in order to be able to be fully responsive to the legitimate concerns of the parties and to facilitate the conduct of the depositions. 'Ihese notes contain a listing by IRJREG element (108 Elenents) of a) the ntsnber of indiv0'uals (RAC members &

two support contractors) who subnittal preliminary ratings cn eadt elenent, b) the ntsnber of individuals who's preliminary ratings were the same as those contained in the final RAC report (the basis for those ratings are containsi in the final RAC report), c) the ntsnber of individuals whose preliminary cxmunatts differed fran those contained in the final BAC report, d) notations as to the comnents subnitted in support of those preliminary ratings which differed frcxu i.

'those contained in the final RAC report. In additicn these notes contain the preliminary ratings of the two witnesses Mr. Baldwin & Mr. Keller.

Mr. Keller was questioned extensively cn these notes (Keller, Tr. 25-56, 67, 70,99-102) as was Mr. Baldwin (Baldwin, Tr. 119, 131-152) and they clearly explained each notation. 'Ihey also were questioned as to the NUREG standards reviewed (Keller, Tr. 28), the ntrnber of comnents received (Keller, Tr. 28),

Baldwin, Tr.123), the ntauber of preliminary comnents in agreenent with the final RAC report (Keller, Tr. 29-30) (Baldwin, Tr.123) the ntsnber of preliminary comnents which differed fran those contained in the final RAC report (Keller, Tr. 30, 34-35), (Baldwin Tr. 123), the basis for those ratings subnittal but not adopted at the RAC meeting ofJanuary 20, 1984. (Keller, Tr.  !

l 45 L.7,9, 48 L.1-2, 50-51, 92,99-102). (Baldwin Tr. 133, 138-139, 140-142).

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It is 'otulous fran a review of the depositions ani eve the Oxanty's pleadings that EDR's witnesses offered to arxi did provide information as to the basis of preliminary differences in ratings. '1he only issue whicts the witnesses declined to respond to were 'regwsts to identify the individual RAC menbers associated with each preliminary rating.

'Ibe witnesses who subnitted preliminary connents (Keller & Baldwin) provided their own preliminary ratings to Suffolk Oxanty (Keller, Tr. 39,44,54) (Baldwin, Tr. 151)*

'1he O)unty alleges it is entitled to know why the preliminary opinions of sone of the RAC manbers were not contained in the final RAC report (Suffolk 0)unty, p.11). It is obvious why these preliminary opinions were not included, and this fact was explored with the witnesses. '1he witnesses explained the RAC process (Keller, Tr. 53) (Baldwin, Tr.68-80, 84-88, 88-96,159-163) (Kowieski, Tr. 76-97), the fact that the RAC reached consenus (Keller, Tr. 65) (Baldwin, Tr. 157-158,159-163, 164-165, 170) (Kowieski, Tr. 91, 93-96) that to RAC meuber was intimidated (Keller, Tr. 105-106) (Baldwin Tr. 158-159) (Kowieski, Tr.

95-%), and that the witness panel could collectively " describe significant, substantive informatial that was discussel amory the RAC members" (Keller, Tr.

127) (Baldwin, Tr. 149) in reaching their conclusions.

Even the citation selected by Suffolk (bunty in support of its notion clearly reflects that the only information it did rot receive wss the names of the individual RAC manber providirg each cmment (Suffolk Oaunty, p.11, p.12-14).

• Mr. Kowieski did not subnit preliminary evaluation comnents (Kowieski, Tr. 26) .

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In denying the Oxatty's July 6 Mtt.icn, the ASIB found that the (bunty's desire to identify the dissenting RAC menbers and the reasons for their dissenting ' views represental a " complete about-face fran the Cbunty's position before the Appeal Ibard" since, according to the Appeal Board's opinion (AIAB-773, slip op., at 17) "[c]ounsel for the (bunty [had] disavow [ed] any particular interest in the names of individuals putting forth specific views .

. . [but nought] only the basis of the RAC conclusions." Tr. 12,128. 'Ibe ASIB 4 also contuded that the (bunty had not explained Why it had became inportant to have such information.

Eitrther, the ASIB, following the guidelines set forth by the Appeal Board in its June 13 Order (ALAB-773, slip op., at 25), decided that the (bunty had i failed to show a cartpelling reed for the doctanents withheld by IDIA.

Specifically, the Board held:

Suffolk (bunty has rot established 'signif-icant differences of opinicn amorg members of the RAC on irtportant issues affecting the adequacy of LIILO's [P]Lan.'

Mareover, the Cbunty has not established that these FENA witnesses are unable to de- .

fend and explain adegaately the FEf% find-ings or that the witnesses viewCP] were in-ordinately derivative of other views. Un-less the (bunty mades sudt a showing, the executive privilege precludes probing the individual views of individual RAC members.

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We AIAB did provide guidelines to the ASIB whart sucts an inquiry g be appropriate; when there may be (1) significant differences of opinion amcng members of the RAC cn inportant issues affecting the adequacy of LIID0's plan; (

> (2) witnesses are unable to defend or explain adequately the underlying basis for FDR's detenninations; (3) witnesses reveal that they have relied to an inordinate degree en the views of others.

In such circunstances...the (bunty g be able to establish a sufficiently empellirx3 need.

We facts in this case clearly show that 1) all RAC metbers agreed with the final i

, RAC report, 2) that the witnesses were able to adequately explain the basis for FD%'s determinations, and 3) that the witnesses did rut rely to an inordinate degree on the views of others.

i We (bunty has not established facts sufficient to convince the ASIB that such a ccupelling need exists (Tr. 12,128-12,129).

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% As to Mr.'Kowieski's notes it should be noted that FENA does not deny that it did not voluntarily produce Mr. Fowieski's notes.

i Pursuant to Rule 26(b)(3) of the Federal rules of Evidence a party may cbtain dis-covery of docunents otherwise discoverable under (b)(i) and prepared in anticipation of litigation on1 upcm a showing that the party seeking ery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Mr. Fowieski was able to answer Suffolk (bunty's questions without utiliz-

'ing his own notes (Kowieski, Tr.103-104). 'Ihe availability and production of the notes of Mr. Keller and Mr. Baldwin obviated the need for the production of Mr Fowieski's notes. (bunsel for FENA repeatedly explained that no foundation had been laid for the production of these notes, (Fowieski, Tr.103).

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t-l A careful reading of the deposition transcripts reveals very clearly that Suffolk (bunty basis its whole appeal cm a request for the comnents of the individual reviewers by name. (see Suffolk (bunty Pleadings p. 28) We conpeting concerns as to executive privilege have already been nore than adequately addressed in the previous filings before the ASIB and this Ibard.

%e limited issue at this stage of the proceeding is whether Suffolk (bunty has met the criteria for direct certification as outlined in 1%rble Hill. %ere is no indication that the ASIB's present rulirg would cause an imnediate and serious irreparable inpact which could not be alleviated by a later appeal nor does Suffolk (bunty shcw hcw the present ruling of the ASIB affects the basic structure of the present proceeding in a pervasive or unusual manner.

We Oxnty basically argues that it is being denied all the discovery it has requested. W is is not an issue of law. We issue of law have already been disposed of by the Appeal Board in AIAB-773. Nor is it a novel issue. All that remains is a question of fact, whether the ASIB properly applied the standards provided by the Appeal Board.

Se only issue of law, is a sinple application of te Bederal Rules of Evidence to the producticn of Mr. IOwieski notes.

We AIAB provided guidance to the ASIB (AIAB-773, slip. op. at 25) as to the neccessary facts that muld entitle the (bunty to the relief it seeks. % e ASIB has determined that such factual circunstances do not exist (ASIB order Tr.12, 128-29).

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'Iherefore, directed certification of the ASm's determination should not be granted.

Conclusion Ebr the foregoing reasons, Suffolk (bunty has not met the criteria for directed certification of the Licensing Boards July 10, 1984 order to the Appeal Board.

Respectfully suhttitted, wh%.

Stewart M. Glass Regional Counse' Federal Dnergecy Management Agency Dated: New York, New York this 10th day of August,1984 2

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_,E b UNIFED STMES OF AMEREA Nuctaa ReaumoW ccMMISsxw p[gfn BEronE THE mroer Sarury Ano LrE2SIE APPFE BCERD $80 f3 A10:51 In the Matter of ) The if j I ) Docket 243. 50-322 4 3 SRltfcj

) (Bastgency Planning)

IDtG IStAt0 LDfrI!G CQ4 PAW

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(Shorehan t&aclear Power Station, Unit 1 )

CERFIF EATE OF SERVX2 j

I hereby certify that copies of the Federal Bastgency Management Agency's Response To Suffolk Opunty's Motion Pbr Directed Certific=*km Of The Atanic Safety and Licensing Board's Order of August 10, 1984 has been served on the r

following by deposit in the United States mail, first class or dure indicated by an asterisk by Telecop,ier this 10th day of August 1984.

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Iaurenson, Esq.* Howard L. Blau, Esq.

James A.

' Administrative Judge, Chairman 217 Newbridge Road Atanic Safety and Licensing Board Hicksville, W 11801 U.S. t&aclear Regulatory Mamien

- East-West Tower, Rn. 402A W. Taylor Reveley III, Esq.*

4350 East-West Hwy. Hunton & Willians Bethesda, MD 20814 707 East Main Street Richmond, VA 23212 Dr. Jerry R. Kline*

Adninistrative Judge O mrif Sedkey, Esq.

Atanic Safety and Licensing Board Kirkpatrick, Icckhart, Johnson

! U.S. t&aclear Regulatory Ctanission & Hutchison East-West Tower, Rn. 427 1500 Oliver Building 4350 East-West Hwy. Pittsburgh, PA 15222 Betheeda, MD 20814 Stephen B. Iatham, Esq.

John F. Siem, III, Esq.

i Mr. Frederick J. Shan*

Administrative Judge Twomey, Iathan & Shea Atanic Safety and Licensing Board Attorneys at Law I

I U.S. B&aclear Regulatory Ommtanion P.O. Box 398 East-West Tower, Rn. 430 33 West Second Street 4350 East-West Hwy. Riverhead, W 11901 Bethesda, MD 20814 1

! Atanic Safety and Licensing Board Panel U.S. t&aclear Regulatory Cannission

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l Washington, D.C. 20555

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, 7 Atanic Safety and Licensing Stewart M. Glass, Esq.

Appeal Board Panel Regional (b ansel U.S. Nuclear Regulatory Comnissicn Federal Dnergency Managenent Agency Washington, D.C. 20555 26 Federal Plaza, Itn.1349 New York, New York 10278 Docketirv3 and Service Section office of the Secretary Secretary of the Ctanission U.S. Nuclear Regulatory @mnissicn U.S. lOclear Regulatory Washington, D.C. 20555 Omnission Washington, D.C. 20555 Spence Perry, Esq.

Associate General Cbunsel Federal Dnergency mnagement Agency Bernard M. Bordenick, Esq.*

Ibom 840 oreste Russ Pirfo 500 C. Street, S.W. Edwin J. Beis, Esq.

Washington, D.C. 20472 U.S. Nuclear Regulatory (bmnission Herbert H. Brown, Esq.* 7735 Old Georgetown Road Iawrence (be Lanpher, Bsq. (to mailrocan)

Karla J. Letsche, Esq. Bethesda, MD 20814 Kirkpatrick, Inckhart, Hill G ristogter & Phillips Fabian G. Palcrnino, Esq.

1900 M Street, N.W. Richard J. Zahnleute, Esq.

8th Floor Special Counsel to the Governor Washington, D.C. 20036 Executive Chamber State Capitol Eleanor L. Frucci, Esq.* Albeny, New York 12224 Attorney Atanic Safety and Licensing Doard Panel Ben Wiles, Esq.

U.S. Naclear Regulatory (bmnission Assistant 03unsel to the Governor Bethesda, MD 20014 Executive Chamber State Capitol Gerald C. Crotty, Esq. Albany, New York 12224 (bunsel to the Governor Executive Gamber Jonathan D. Feinberg, Esq.

State Capitol Staff (bunsel Albany, New York 12224 New York State Department of Public Service James B. Dougherty, Esq. 3 Dipire State Plaza 3045 Porter Street, N.W. Albany, New York 12223 mshington, D.C. 20008 ce d., p Stewart M. Glass Regional Cbunsel for Faleral Dnergency Managenent Agency

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^t couRIESY COPY LIST Edward M. Barrett, Esq. Mr. Brain R. M:Caffrey General (bunsel Iag Islai Lighting Campany Iong Island Lighting Ompany thoreham M.aclear Power Station 250 Old County Ibad P.O. Box 618 Mineola, NY 11501 North Oxmtry Ibad Wading River, NY 11792

!%rc W. Goldanith Ehergy Research Grotp, Inc. 191B Technical Associates 400-11bttcn Pond Ibad 1713 Hamilton Avenue Waltham, MA 02154 Suite K San Jose, CA 95125 Nrtin Bradley Ashare, Esq.

Suffolk (bunty Attorney Hon. Peter (bhalan H. Ise Dennision Bldg. Suffolk (bunty Executive Veteran's Manorial Highway Cbunty Executive / Legislative Bldg.

Hauppauge, NY 11788 Veteran's Menorial Highway .

Hauppauge, NY 11788 Fen Ibbinson, Esq.

N.Y. State Dept. of Law Mr. Jay Dunkleberger 2 Wbrid Trade Center New York State Energy Office Roam 4615 Agency Building 2 New York, NY 10047 Dnpire State Plaza Albany, NY 122?.3 Ms. Nora Bredes Eboreham Opponents (balition 195 East Main Street Snithtown, NY 11787 taan Friednan, Esq.

Cbstigan, !*yman & Hyman 1301 Franklin Avenue Garden City, New York 11530 t

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