ML20147D427

NRC Staff Response in Opposition to State of Ny Motion for Order Compelling NRC Staff to Respond to Discovery.* State Has Not Feigned to Make Affirmative Showings Required by 10CFR2.720 & 2.744.Certificate of Svc Encl

ML20147D427
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/25/1988
From:	Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5720 OL-3, NUDOCS 8803040021
Download: ML20147D427 (12)

Text

,p2 h 02/25/88

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c 00CHETED USNRC

!!NITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION y MAR -2 P2 :32 BEFORE THE ATOMIC SAFETY AND' LICENSING ROAkC E fbi b[

D .":Svi in the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RFSDONSE IN OPPOSITION TO STATE OF NEW YORK'S MOTION FOR AN ORDER COMPELLING THE NRC STAFF TO RESPOND TO DISCOVERY INTRODUCTION .

On February 12, 1988 the State of New York filed a motion O with this Licensing Board for an order directing the NRC Staff to respond to the. State's discovery previously served upon the Staff. The NRC Staff's response in opposition to that motion follows.

BACKGROUND On January 22, 1988 the State of New York served its "First Set Of Interrogatories And Reqest For Production Of Documents To The NRC Staff And FEMA." On February 2, 1988 the Staff served "NRC Staff Objectiors To State Of New York's First Set Of Interrogatories And Reauest For Production Of Documents To The NRC Staff And FEM A. "

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1/ "State Of New York's Motion For Order Compelling LILCO And The NRC Staff To Respond To The State Of New York's First Set Of Interrogatories And Request For Production Of Documents" February 13, 1988.

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o FEMA has no role in New York's motion which is directed only to the Staff and LlLCO and is not further addressed here, in its objections, the Staff declined to respond to the State's discovery as in the Staff's opinion the information sought by the State of New York was not relevant to the possible bus driver role confilct issue now before the Licensing Scard, was not necessary for this Licensing Board to make a proper decision upon the issue, and, in some instances, available to the State from other sources. i.e., the Commission's Public Document Room or the Applicant.

On February 12, 19PE the State of New York filed a motion with the Licensing Board requesting ar' nrder compelling LlLCO and the NRC Staff to make responses to discovery. That motion in so far as it relates to LlLCO is not addressed here.

On February 22, 1988 the Licensing Board granted LILCO's Motion of January 25, 1988 to exclude as issues in controversy 1) the availability of huses, 2) the identification of reception centers, and 3) evacuation time estimates. Thus the issue now before the Licensing Board is possible role conflicts among bus drivers in the event of an emergency at the Shoreham faci!!ty, an issue remanded by the Appeal Board in ALAB-832, 23 NRC 135,153,154 (1986).

DISCUSSION A. Intervenor Has Not Complied With The Regulatory Provisions Governing Discovery From,The Staff l

Discovery against the NRC Staff is governed by 10 CFR 62.770(h)(2)(li) for interrogatories and by 10 CFR 2.744 in regard to the

production of documents. For interrogatories, the proponent must first

submit them to the presiding officer, here the Administrative Judge, who will authorize their service upon the Staff only after a finding is made that the requested information is necessary to a proper decision in the proceeding and that the information sought is not reasonably obtainable frcm any other source.

A request for document production may be served upon the Executive Director For Operations (EDO) without first obtaining leave of the presiding officer (2.744(a)). If the EDO determines that the requested documents are not relevant, or exempt from disclosure under ,

10 CFR 92.790, or not necessary to a proper decision in the proceeding or reascnably obtainable from other sources, he may decline to produce the requested documents and shall so advise the requesting party, f2.744(b).

If the EDO objects to producing a document for the reasons set forth in 52.'/44(b) the requesting party may apply to the presiding officer for er order compelling production of the document. The applicant for the ceder must affirmatively demonstrate 1) relevance, 2) that the document is not exer'pt under 52.790, 3) that disclosure is necessary to a proper decision in the proceeding and, 4) that the document sought is not obtainable from another source, (52.744(c)). If the presiding officer makes affirmative findings on relevancy, exemption under 2.790, neces-sary for a proper decision, and not otherwise obtainable, about each document sought, hc may then order production of the documents sought (92.744(d)) subject to conditions to protect safeguards information or other confidentla! matte r . As stated in [>e_nnsylvania Pow'er,and Light

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Company (Susquehanna Steam Electric Station, Units 1 and 2) ALAB-613, 12 NRC 317, 323 (1980):

Discovery against the staff is on a different footing . With limited exceptions, Commission regulations make staff documents that are relevant to licensing proceedings routinely available in the NRC Public Document Rcom. 10 CFR 2.790(a). The contemplation is that these "should reasonably disclose the basis for the staff's position," thereby reducing any need for formal _

discovery. Reflective of that policy, the Rules of Practice limit documentary discovery against the staff to items not reasonably obtainable from other sources,10 CFR 2.744; require a showing of "exceptional circumstances" to depose staff personnel, 10 CFR 2.720(h) and 2.740a(J); and allow interrogatories addressed to the staff only "where the information is necessary to a proper decision in the case anJ not obtainable elsewhere." See 10 CFR 2.720(h)(2)(li). In addition, the licensing board's advance permission is needed to depose staff members or to require the staff to answer y ritten interrogatories. Ibid.

[ Footnotes omitted)

The State of New York's Motion acknowledges the two applicable provisions cf the NRC regulations, 10 CFR 662.720(h)(2)(li) and 2.744, but falls 1) to comply with them and 2) falls in the text of their Motion to address the substantive requirements of the regulations to show that the '

information should be disclosed. Nor did the State of New York feign to make the required regulatory showings in its original discovery request dated January 22, 1988. As the intervenors have not complied with regulations applicable to discovery from the Staff, the Motion must be denied. .

R. Intervenors' Discovery Requests Do Not Fall With The ,

Ambit Of Matters Subject To Discovery From The Staff As we have detailed, discovery from the Staff may only be ordered where an intervenor has estabilshed that the matters he seeks to discover 7 are (1) relevant to issue in controversy, (2) necessary for the Licensing Roard to reach a proper decision, (3) not protected from disclosure by 10

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C.F.R. 5 2.790 and (4) not available from another sou rce. See 10 C.F.R. Il 2.720(h)(2)(ll) and 2.744(b). The Intervenor has not even attempted to shoulder this burden or attempted to comply with the regulations. Further an examination of each interrogatory and the Staff's response, shows that the inter'venor could not have sustained this burden and even if intervenor had proceeded under the Rules, and its requests for information could not have been g ranted. Each interrogatory is addressed below.

Interrogatory 1:

When bus drivers for nuclear plants other than Shoreham are trained to drive buses during radiological emergencies, what, if anything, are they told, on a plant by plant basis, about calling for their families in emergencies?

NRC Staff Objection:

Communication to bus drivers at nuclear facilities other than Shorehere is not relevant to, or necessary for, this Licensing Board's decision.

The Intervenor states that "The interrogatory does not seek communication to bus drivers at nuclear facilities other than Shoreham."

Motion at 13. This is not true. The interrogatory asks, by its terms, "what, if anything, are they told, on a plant by plant basis , about calling for their families in an emergency." (Emphasis added]

Fu rthe r , the Licensing Board need not know in order to reach a proper decision upon the bus driver role conflict issue, what emergency response bus drivers are told" on a plant by plant basis, about calling for their families in emergencies." intervenor admits this information is of doubtful relevance, (Motion at 13). The test under 10 C.F.R. 52.720(h)(ll), is not only that th s Information be relevant, but that it

meet a higher standard of being "necessary to a proper decision in the proceeding . " The bus driver role confilet issue in Shoreham can be resolved without this information. The request does not fall within the scope of matters discoverable from the Staff under 10 C.F.R.

9 2.720(h)(2)(ii).

Mcw York refers to parts of two sentences, taken out of context, of the "NRC Staff Response To LILCO's Motion For Summary Disposition of Contention 25.C (Role Conflict of School Bus Drivers) dated November 13, 1987. As a part of its Motion For Summary Disposition LILCO esserted that there was historical precedent for the use of utility employees to serve as bus drivers. In the Staff's response the Staff agreed that this factual statement was true - and indeed it is true, see Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),

ALAB-857, 25 NRC 7,10 (1987) . That does not demonstrate that matters told to bus drivers" at all 106 licensed nuclear plants is "necessary for a proper decision on the role conflict issue in this proceeding, b Further, the Intervenor has not established that he cannot obtain this inforrration from other sources, such an the NRC public document rooms or from licensees. No basis exists to determine the information sought could be required to be produced under 10 C.F.R.

6 2.720(h)(2)(ii).

-2/ Intervenor seeks to buttress its request to the Staff with citations to discovery recuests to other parties. Those requests are governed by 10 C.F.R. 5 2.740(b)(1) which permits discovery to other parties of any matter "which is relevant to the subject matter involved in the proceeding." This section does not apply to discovery from the (FOOTNOTE CONTINUED ON NEXT PAGE) l t

Interrogatory 2 Do any radiological emergency response plans for nuclear ' plants other than Shoreham rely either fully or partially on utility employees to drive buses for school children? If the answer is affirmative, please identify the particular nuclear plants and the relevant pages of the corresponding radiological emergency respunse plans.

NRC Staff O,bjection The provision of emergency plans for facilities other than Shoreham are not relevant to the issue before the Board, and are not necessary for the Board's decision. Further, the emergency plans are public documents available in the Commission's Public Document Room and readily available to the State of New York. See to CFR 6 2.720(h)(il).

Errergency Pland for nuclear power facilities are in the Commission's Public Document Room. Therefore the information is available from other sources and the Intervencrs cannot compel the Staff to search the emergency plans in the PCR and to winnow out the information Intervenor seeks.

Further, the State of New York has not even attempted in its inter r ogatories or in its Motion to Compel to show why this requested information is needed by this Licensing Board to arrive at a proper decision upon the bus driver role conflict issue. Information on whether

! utility employee drive buses for schcol children at other nuclear plants is l

l not necessary for the Licensing Board's decision. Thus, for this reason l

alone, Intervenor could not obtain the information sought under 10 l

C.F.R. 6 2.720(h)(2)(ll).

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

Staff (10 C . F . C. . < 7.7140( f)(3)) , which under 10 C.F.R.

5 2.720(h)(2)(li) is limited to "answer to interrogatories which are necessary to a proper decision in the proceeding."

_a Interrogatory 3 Has the NRC or FEMA ever met (on or about January lli, 1988 or at any other time), or engaged in telephone conversations or discussions, with LILCO regarding in any way LILCO's schools evacuation proposal?

If the answer is affirmative:

(a) identify the dates and locations of the meetings or the dates of the telephone conversations or discussions, (b) identify all attendees or participants; (c) specifically describe all statements that were made about LILCO's schools evacuation proposal, (d) attribute all such statements to particular individuals, and (e) provide any documents that concern LI LCO's schools evacuation proposal that were produced in preparation for, during, or as a result of the meetings, telephone conversations or discussions.

NRC Staff Objec, tion Discuulons, if any have occurred, among NRC, FEMA and/or LILCO regarding the schools evacuation proposals contained in Revision 9 of the I.l LCO emergency plan are not relevant to whether there will be an adequate supply of bus drivers for school buses in the event of an emergency at Shoreham (the remanded issue in this proceeding), not is the disclosure of any such discussions, if they' occurred, necessary to a decision by this Licensing Board. See 10 CFR 6 2.720(h).

The State has made no effort at all to demonstrate that the requested information, if it exists, is necessary to a proper decision by the Licensing Board upon the bus driver role conflict issue. Discussions between NRC and FEMA could not effect New York's evidentiary case upon the role conflict issue and revealing such discussions is not necessary to a proper decision upon this issue. U 3/

Intervenor cites as a reason for requesting an order to compel, its discussion at 10-12 of its Motlen relating to discussions between counsel for L iLCO and counsel for the Staff on January 17, 1980.

Discussions among counsel for the parties are, of course, not discoverable.

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Moreover, information on any discussions the Staff may have had with LILCO is obtainable from another source, i.e., LlLCO, and thus may not be gathered from the Staff under 10 C.F.R. 6 2.720(h)(2)(ll).

Interrooatory 4 Provide a copy of all documents used in preparing the answers to these interrogatories.

NRC _Staf f Objection Not applicable.

The State complains that "it is difficult to tell what the Sta ff's response means. . .

The Staff feels that its e esponse is succeptable of full and cortplete meaning, even though succinctly stated. The Staff answered no interrogatories and therefor it is apodictic that it relles upon no docurnents in answcring.

Inte,rregatory 5 Lis t , on a numerical interrogatory by interrogatory basis and on a lottered subpart by subpart basis, all pr.ople who were asked to provide information or documents in response to: (a) this pleading; (b) the pleading subriitted by Suffolk County ertitled, "Suffolk County's First Set of interrogatories and Request for Production of Documents to the NRC Staff and FEMA." dated January 4,1988.

NRC Staff Obje,ction  ;

This ir.terrogatory seeks disclosure of the scope of a Staff search  !

for information to regard to Interrogatories. First, this is not relevant ,

to the issue before the B oa rd. Secondly, such information is not necessary to a proper decision in this proceeding upon the issue of availability of school bus drivers.

The Staff stands upon its objection to the interrogatory with one further addition. The Staff objected to all of the State of New York's Interrogatories and therefor no one on the NRC Staff or elsewhere was i

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asked to provide information to essist in preparing a response either to the original Interrogatories or to the State's Motion To Compel as no Staff answering response was rnade. It was patently evident to the Staff's counsel that the State of New York's Interrogatories and Documents Requests were in violation of 10 C.F.R. 66 2.720 and 2.744 Thereupon Staff counsel prepared and filed objections to these Interrogatories and Documents Recuests.

CONCLUSION The NRC Regulations prohibit discovery upon the NRC Staff as attempted by the State of New York. The State has ret even feigned to trake the affiert,ative showings required by 10 C.F.R. 66 2.720 and 2.744 to obtain discovery upon the Staff. The Motion by the State of New York for an Order directing the NRC Staff to Respond to the State's discovery should be denied.

Respectfully submitted, Charles A. Barth MY Counsel for NPC Staff Dated at Rockville, Maryland this 25th day of February,1988

l-UNITED STATES OF AMERICA DXKETED NUCLEAR REGULATORY COMMISSION ME '

BEFORE THE ATOMIC SAFETY AND LICENSING BOAb 0FilCE 01 SECntiw in the Matter of ) 00CKE1 . F Ei'VICf.

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 5 0-32 2-O L-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, ) 1 Unit 1) }

CERTl8:lCATE OF SERVICE '

I hereby certify that copies of "NRC STAFF RESPONSF IN OPPOSITION ,

TO STATE OF NEW YO R K'S MOTION FOR AN ORDFR COMPELLING TflE NUC STAFF TO F:ESPOND TO DISCOVERY" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, this 25th day of February 198P.

James P. Gleason, Chairrran* Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Milne* Fabian G. Palomino, Esq.

Adriinistrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Sher

• Jonathan D. Feinberg, Fsq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley 111, Esc.

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212

Douglas J. Hynes, Counci! man Dr. W. Reed Johnson Town Board of Oyster Bay 115 Falcon Drive, Colthurst Town Hall Charlottesville VA 22901 Oyster , Bay, New -York 11771 Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Twomey, Latham 6 Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza ll.S. Nuclear Regulatory Commission Albany, NY 12?23 Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Anthony F. Earley, Jr. Dr. Monroe Schneider General Counsel North Shore Committee Long island Lighting Company P.O. Box 231 175 East Old County Roac; Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes <

Dr. Robert Hoffman Shoreham Opponents Coalition Long Islana Coalition for Safe 195 East Main Street Livirg Smithtown, NY 117t7 P.O. Box 1355 Massapequa, NY 11758 William R. Cumming, Esq.

Office of General Counsel Alfred L. Narcelli, Esq. Federal Emergency Management New York State Department of Law Agency ,

120 Broadway 500 C Street, SW  !

Room 3-118 Washington, DC 20472 Docketing and Service Section* Rarbara Newman  !

Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living Washington, DC 20555 Box 944 Huntington, New York 11743 9f$m /

Charlei'A. 'Barth "

Counsel for NRC Staff

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