ML20151T649

Memorandum in Support of Application for Subpoenas Requiring Attendance & Testimony of Particular Named FEMA Employees, Per 10CFR2.720 (a) & NRC Employees,Per 10CFR2.720 (h)(2).*

ML20151T649
Person / Time
Site:	Seabrook
Issue date:	04/21/1988
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20151T605	List: ML20151T601 ML20151T649
References
OL, NUDOCS 8804290092
Download: ML20151T649 (15)

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4 0 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Adminsitrative Judges:

Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.

Dr. Jerry Harbour In the matter of: )

) Docket Nos. 50-443-OL Public Service Company of ) 50-444-OL New Hampshire, et al. )

) (Offsite Emergency (Seabrook Station, ) Planning Issues)

Units 1 and 2) )

MEMORANDUM IN SUPPORT OF APPLICATION FOR SUBPOENAS REQUIRING ATTENDANCE AND TESTIMONY OF PARTICULAR NAMED FEMA EMPLOYEES PURSUANT TO 10 CFR S 2.720(a) AND HEC _EMELQ1EES PUESMANT. TO_S2d2Dlbl121 The Board is already aware of the f acts of the matter at issue. Briefly, Seacoast Anti-Pollution League, New England Coalition of Nuclear Pollution, the Massachusetts Attorney General and the Towns of Hampton, New Hampshire and Amesbury, Massachusetts have applied to the Board to issue subpoenas for the attendance and testimony of certain individuals believed to have knowledge, information and/or evidence relating to F EMA 's Marc h ,

1988 decision to change its position on the Seabrook area beach population and the adequacy and implementability of the state and local offsite emergency plans. Specifically, it appears that at the meeting held on January 19th of this year at which employees of both the NRC and FEMA were present, FEMA may have committed to substantial changes in its position and testimony relating to the 8804290092 880421 PDR ADOCK 05000443 C PDR

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beach population, under coercion and pressure by NRC personnel, and as a resule of threats by Victor Stello, NRC Executive Director for Operations that "NRC would engage in total war" on FEMA if FEMA did not change its position.1 In addition, the NRC, through Attorney Turk, Frank Congel or Robert Bores, or all of them, may have conveyed to FEMA legal

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theories or asserted f actual positions on which FEMA was either asked to, or did, change its position. For example, Attorney Turk is said to have personally told Mr. Thomas that a "best efforts" plan at the given site was suf ficient (Thomas Deposition at Vol.

3, pages 40, 41) , and Robert Bores offered a memo, known as "Bores I", which referenced the Seabrook containment in conjunction with the position that the NHRERP was adequate.

During the recent deposition of Mr. Edward A. Thomas, FEMA Chief of Natural and Technological Hazards Division, Region I, Mr.

Thomas presented testimony which indicated that FEMA's position on the Seabrook evacuation plans relating to the beach population may have changed as a result of emphatic insistence by the NRC.

During the Deposition, Mr. Thomas was permitted to testify about what he had learned from George Watson, counsel for FEMA, who had been at the FEMA /NRC meeting on January 19th. Attorney Joseph Flynn, also counsel for FEMA indicated that at stage of the deposition that Thomas should go forward with his testimony. Then, 1/ It should be noted FEMA has now admitted a meeting between FEMA officals and Mr. Stello did occur on that date. (See FEMA Declaration of Julius W. Becton, Jr. , 4/15/88)

3 later in the course of the deposition, as Thomas continued to convey what he had learned about the January 19th meeting and certain other discussions relating to that meeting, Flynn .

attempted to assert the attorney-cll2Dt_RI1E11222 (not executive privilege) and halted Thomas testimony on this subject.

Subsequent to Thomas ' deposition, on April 5,1988, a telephone conference was commenced before the Board, in which representatives for NRC, FEMA, the Applicants and the Intervenors were present, to discuss the applicability of the attorney-client privilege and/or any other evidentiary privilege that could properly be asserted to discontinue Thomas ' testimony , and could further be used to prevent the testimony of other FEMA and NRC representatives who had knowledge at the January 19th meeting and

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could shed light on FEMA's unwarranted turnabout decision.

While parties to the conversation discussed at length the possible applicability of the attorney-client privilege, the work-product privilege, and the deliberate process executive privilege, it was evident by the conclusion of the discussion that the only privilege that could even possibly apply in this instance was the deliberate process privilege. The intervenors maintain that no such privilege can exist in the circumstances of this case. The following memorandum is submitted to support this contention.

SUMMARY

OF AEGUMEBI l

I As a rule, evidentiary privileges must be construed and applied narrowly. Evidentiary privileges are generally disf avored i

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as they act in contravention of attempts to have the truth be known. Further, exclusionary rules and privileges act as a bar to the fundamental principle.that evidence relevant to a proceeding should be disclosed so as to ensure full knowledge of the f acts and to arrive at the truth.

The privilege which may be asserted by administrative or agency decisionmakers is markedly less than that which is available to legislatures by' the Constitution's speech and debate clause, or to the President'under the executive or presidential privilege. Administrative decisionmakers may claim at a best a qualified evidentiary privilege. Furthermore, when the defense of executive privilege is asserted with respect to administrative or agency meetings, or discussions and it is the very deliberations which took place during those discussions which are at issue, thern_can_hn_no_priyllege. When it is the acts of the decisionmakers or the motives which prompted the decisions which is questioned, no privilege may apply.

Here, the Intervenors question the extent to which NRC 's influence and threats to FEMA af fected FEMA's March,1980 testimony. Without the availability of evidence and testimony by those persons who Intervenors wish to depose which can shed light on FEMA's large scale shif t in viewpoint, it will be impossible to ascertain whether the stated reasons and motives behind the FEMA decision are the real ones. It is clear that the discussions held during the January 19th meeting and perhaps at certain other

5 meetings are directly relevant and that they may well have had a bearing on FEMA's shif t of position. Further, it is the motives behind the FEMA decision which the Intervenors challenge, and therefore no privilege may be asserted by the decisionmakers involved.

DISCUSSlQH The deliberate process executive privilege when considered in the context of agency or institutional decisionmaking, is a privilege which receives considerably less deference than the presidential executive privilege. This privilege is at best a qualified privilege and is to be narrowly construed. Exxon _ Corp 2 22_ Department __nf_ Energy., 91 F . R.D . 26 (N.D. Tex. 1981) Further, the Imraunity afforded agency decisionmaking processes is also significantly less than the speech or debate clause af fords members of Congress. 63 N.C.L. Rev. 879, Inquiry into Decisionmaker Motive, June 1985.

Two strong and overriding arguments exist for completely deny ing the claim of the deliberative process privilege to agency decisionmakers. First, there is no substantial evidence that disclosure as to what took place during deliberative processes would actually chill communications within governmental agencies and inctitutions. Indeed, no such privilege had been claimed by NRC in this case prior to January 19, 1988 (see Tran. 3132), and this lack of a claimed privilege seems not to have "chilled" Ste11o 's ability to be blunt. Secondly, it is often the internal

6 communications themselves which are challenged. When this is the case the deliberative process privilege is to be very narrowly applied. When it becomes necessary to inquire into the very nature of deliberations ~of the agencies, the privilege breaks down, and the content of the deliberations must be disclosed for effectiye review. C i t i z ens _.LQ_h2H2rY2_DY2Lt9n_P. Ark _2.a_Y2122, 401 U.S. 402 (1971) 38 Harv. L. Rev. 1450, Developmcats in the Law of Privileged Communications, May 1985.

In this instance it is the regularity and validity of the FEMA /NRC meetings, particularly the January 19th meeting, which are questioned and for which further testimony is sought.

Evidence h6s already been presented which shows that FEMA's March 1988 decision was likely tainted by the communications and threats made during the January 19th meeting. It is therefore necessary and critical to obtain complete testimony about the deliberations which transpired during that January 19th meeting to determine how strongly the deliberations may have influenced, and in f act changed FEMA's position.

When a situation such as the one at hand arises, the Board should necessarily be hesitant to protect the agency decisionmakers involved from questions about their deliberations.

If the Board prohibits further testimony relating to the NRC and FEMA communciations, it will ef fectively immunize the employees from any liability for possible improper actions they may have taken.

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7 The Supreme Court has firmly held that administrative decisionmakers may be questioned and compelled to testify about their deliberations and mental processes when necessary to explain their actions. In Citizgns..to. Preserve Ov211Qn_Eark_Y2_.s192, V 401 U.S. 402 (1971) the Court held when there are no formal administrative findings ~ which exist to adequately explain the.

decisionmakers decision, "[t]he Court may require the administrative officials who participated. in the decision to give testimony explaining their actions," . . . "it may be that the only way there can be ef fective judicial review is by examining the decisionmakers themselves." Id. at 920 The Supreme Court in CAEp v. Pitts, 411 U.S. 1381 (1973) soon thereafter held that where "there was such a f ailure to explain administrative action as to frustrate ef fective judicial review," a court may "obtain from the agency, either through affidavits or testimony, such additional explanations of the reason for the agency decision as may be necessary." Id. at 142-143.

The Supreme , Court has also suggested that the deliberative process privilege should not bar the testimony of administrators about their deliberations, when the deliberations relate to a particular action taken, and such action appears to have been arbitrarily or irrationally made. Arlington _Heighta_Yi_Meirs Housing _CQIp2, 429 U. S. 252, 265, 97 S.Cf. 555 (1977)

Relying on the Supreme Court holdings many lower courts have since held that administrative decisionmakers should be compelled

8 to give over testimony and documents when necessary to provide an explanation for the reason for an agency decision, particularly, as in this case, where no satisfactory explanation has been put f orth to rationalize the decision. See In_re_D2214_Df_In2 ige EtIIERRI Hall EX2GRilon, 520 F. Supp. 123 2, 126 9-127 0 (D .Kar 1981)

(Depositions of the primary decisionmakers were permitted to be taken to attempt to determine on what rationale or evidence the agency based its decision). En2.1IDDanntal_D_2f2Dse. Fund 2_IDE2_ L Cnatin, 657 F. 2d , 27 5, 2 85, (D.C. Cir 1981) (court may go outside the administrative record when necessary to ascertain whether agency could fully explain its course of conduct or grounds for its d ecision) , Sun _011_C22_Y2_U.2S2, 514 F . 2d 1020,1024 (197 5)

("Where a demonstrative need for documents sought is clearly suf ficient on balance, to override a claim of privilege, the documents must be produced.)

Further, several courts have held that if bad f aith or improper motive is alleged, or there is evidence that the decisionmakers may have acted for illegal purposes, the depositions and testimony of the decisionmakers should be taken to i disclose whether such improper motive exists. See Euklic_Eower Council v. J2hnagn, 67 4 F . 2d 7 91, 7 95 ( 9th Cir . 1982); abbatt Lahnra19r12a_Y2_HarI13, 481 F. Supp . 7 4, 7 8 (N.D. Ill . 198 9) j concededly, the Board, has a responsibility to weigh the agencies' interest in retaining confidential information I

communications, against the Intervenors ' interest in having the l

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truth be known. However, when, as is clearly necessary here, the evidence and testimony of the agency decisionmakers are critical to demonstrate FEMA's motive and rationale, FEMA's asserted

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qualified deliberative process privilege must give way to the greater need for truth.

CQHCLUS10H For the foregoing reason, and the waiver and "law of the case" reasons previously enumerated (?) by these par ties 'in their Subpoena Applications of April 14, 1988, the Board should grant the Intervenor 's Application for Subpoenas requiring attendance and testimony of those FEMA and NRC employees named in the Intervenors' 70kbaena Application.

Respectfully submitted, Seacoast Anti-Pollution League By its Attorneys, BACKUS, MEYER & SOLOMON By.

fo M [ f. Backus, Esquire 116 Lowell Street Box 516 Manchester, NH 03105 (603) 668-7272 I hereby certify that copies of the foregoing Memorandum in Support of Application for Subpoenas Requiring Attendance and Testimony of Particular Named FEMA Employees Pursuant to 10 CFR S2.720(a) and NRC Employees Pursuant to 52.720(h) (2) have been mailed, postage prepaid to that attached service list this JJOEI day of April, 1988. Copies have been forwarded to those indicated with an asterisk this day by Federal Express.

Rob 6 W AS 'Bfckus, Esquire

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O Enitch 9tates of America NUCLEAR REGULATORY COhlhilSSION v

in the matter of: Public Service Campany of New Hampshire, et al. (Seabrook Station, Units 1 and 2)

> DOCKET NO. 50-443-OL 50-444-OL TO Margaret Inwless Emrgency !!anagement Specialist, '

Directorate of State and local Programs and Support Federal Dmrgency Manage' rent Agency 432 !!cCormack Post Office Boston, 11A 02109 YOU ARE IlEREBY COhlhiANDED to appear .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

In t h e ci t y o f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

o n th e . . . . . . . . . . . . . . . .d a y o f.. . . . . . . .. . .. . . . . . . . . . . . . ! 9. . . . . . . . .a t . . . . . . . . . . . . . . . . . . . . . 0 'cl o c k 51.

t o t es t ify o n be h al f o f ... . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . .. . . .. . . . . . . . . . . . . .

in the above entitled action and bring with you the document (s) or object (s) described in the attached schedule.

(See Attached Schedule A)

BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY mORNEY FOR wwt Ariti-Pollution Imague , ,,19,, , , .

Robert A. Backus. Em.

P.O. Ibx 516 t hn nbost or- W m1m TELEPHONE I66M OA 47979 10 C.F.R. 2.120 (f) presidung officer er. if he is unvaitable. the On motion made promptly, and in any twnt Commission may (1) quash or modify the sub-at or before the time specified in the ssbrorna poens if it is unreasonable or requires eddence for compliance by the person to whom the euk- not relevant to any matter in issue, or f.') con-poena is directed, and on nonce to the part) at dution densal of the motion on just and reasonable whose sr. stance the subporna was siswed, the terms.

b SCHEDULE A 2.. All notes prepared by you, memori'alizing the discussion at any meeting where the adequacy of the NHRERP for Seabrook was discussed and, without limiting the generality of the foregoing, in particular any notes prepared by you at or as a result of the March 4, 1988 meeting.

All materials utilized by you or other participants' at inter-2.

agency meetings between FEMA and NRC, including , without limiting the generality of the foregoing, the January 19th meeting between FEMA and NRC.

3. All notes or materials bearing on the issue of dose reduction achieved or achievable by the NBRERP, telephone logs of any telephone conversations you may have had with others outside FEMA regarding the Agency 's position on the adequacy of the NHRERP in regard to the Seabrook beach population, and notes of any such telephone conversations available either in the Agency or to you personally. .

4. Any documentary material, not identified in the pre-filed tesimony of March 14, 1988 that you contend supports the position of FEMA as set forth in the March 14, 1988 testimony.

5. Notes, memoranda, or any other documents from any superior to you in F EMA , if any, concerning the FEMA position on the NHRERP in regard to the Seabrook beach population. ,

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Enitch 9tates of America NUCLEAR '

REGULATORY C0515tlSSION O

in the nutter of: Public Service Co many of Ne.v Ha:rpshire, et al. (Seabmok Station, Units 1 and 2)

>. DOCKET NO. 50-443-OL 50-444-OL TO Frank Congel Director Division of Radiation Drotection and '

BTergency Preparedness office of Nuclear Reactor Regulation US NRC 1717 H Street Washington, DC 20555 YOU ARE HEREBY CO5151 ANDED to appear . ... ...... . ... .... . . . . . . . . . . . . . . . . . . . . . . . . . . . .

inthecityof.............................................................................................

on th e..... . .... . ..da y o f. .... .. . . . . ... . . I 9. . . . . . . . .a t . . . . . . . . . . . . . . . .. .. 0'cloek 51.

to testify on behalf of ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......

in the above entitled action and bring with you the document (s) or object (s) described in the attached schedule.

(See Attached Schedule A)

BY ORDER OF Tile ATOMIC SAFETY AND LICENSING BOARD BY ATTORNEY FOR MO3pt inti_ pollution leat;ue . 19..

Pnhovt i N1 ,c re, P.O Pnv M ('

% r hnc-+ n,- vit noino TELEPHON E I60 CE'- I

10 C.F.R. 2.720 (f) pres >diu otticer or, of he is unsatlable, the On motion made promptly, and in any esent Commission may (1) qu.1sh or modsfy the sub-at or befort the t1mt specifned in the Mpoena poena if it i: unreasonable or requires esidence for compliance by the person to whom the sub- not relesent to any matter in issue. or (2) con-poena is directed. and on notice to the party at dation deni.nl of the motion on just ard reasonable whose entrance the subpoena was assued. the terms.

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I' SCHEDULE A y 1.* Any notes made at the meeting between NRC and FEMA 'that occurred on January 19, 1988, including, without limitation, any materials prepared either for you or at your request in preparation for the meetin'g, as well as notes memorializing the meeting.

2. Telephone logs and notes of any telephone conversations to you concerning NRC's position on:

(a) Filing rebuttal testimony to the previous FE}m position. If any such material has previously been identified in the record, it will be sufficient if you identify that material with suf ficient specificity to permit its ready identification.

3. If verbatim records are available of any meetings between NRC and FEMA, or NRC and the Applicants, or NRC and persons in other federal agencies or the Executive Branch, please provide copies, or state when and where such verbatim records may be reviewed.

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_----__n___ _ _ _ _ _ _ _ _ __ _ _ _ _ _ ______ _ _ _ _ _ __ _ _ _ _ _

8 1v:n W. Snith, Chairman Rob:rto Pave:r YEdwsrdThomas Ato11c Safoty cnd Licensing State Rep. Town of Ha pton TEMA

.) Board Falls 442 J. W. McCormack (POCH)

USNRC Drinkwater Road Bottqtti.rMA 02109 i Usshington, DC 20555 Hampton Falls, Nb 03344 UWu

'88 APR 25 P5 :38 (Dr. Jerry Harbour Docketing & Serv. Sec. OkThoma5Dignan, Esquire Atonic Safety and Licensing Office of the Secretary . 00CKR'o pest & !Gsa9r Board USSRC 22f /Mihk11a Street USNRC Washington, DC 20555 Boston, MA 02110 Washington, DC 20555 Office of Selectmen #Gustave A. Linenberger Jane Doughty Town of Hampton Talls Atomic Safety and Licensing SApt Ha=pton Falls, hm 03S44 Board 5 Market Street US5RC Portsnouth, NH 03S01 Washington, DC 20555 Ashod N. Amirian, Esq. Jeseph Flynn, Asst. Gn. Cnsl. t George Dana Bisbee, Esq.

376 Main Street Fed. Emerg. Mgnt. Agcy. Attorney General s Office Haverill, MA 01330 . 500 C. St. So. West State of New Hampshire Washington, DC 20472 Concord, NH 03301

[Shcrwin E. Turk, Esquire Sandra Cavutis y Carol Sneider, Esquire Office of Exec. Legl. Dr. Town of Kensington As sis tan t Atty Ceneral USNRC Box 1154 One Ashburton Place Washington, DC 20555 East Kingston, NH 03827 19th Floor Boston, MA 02103 Judith H. Mizner, Esquire Charles P. Graham, Esq.

Mr. Angie Machiros, Chr=at To* n of Newbury Silvergate, Gerner, Baker, McKay, Murphy and Graham g, g,11 Fine, Good & Mizner 100 Main Street 25 high Road SS Broad Street Anesbury, MA 01913 Newbury, MA 01951 B st n, m 02110 M Ellyn Ueiss, Esq. Paul McEachern, Esq. William S. Lord, Select an Harmon & Weiss Matthew Brock, Esquire Town Hall 20001 S St.eet IN 25 Paplewood Avenue Friend Street Suite 430 P,0. Box 260 Anesbury, MA 01913

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Washington, DC 20009 Portsmouth, NH 03S01

S:natcr Gordon J. Humphr;y, US S: nata Washington, DC 20510 '

Actn: Janet Coit g Atanic Safey and Licensing Board US NRC Fourth Floor Reception Atra East West Towers, West Bldg. '

4350 East West Highway Bethesda, MD 20S14 J. P. Nadeau Town of Rye 155 Washington Road

• Rye, NH 03870 ,

Adjudicatory File v Ato:ic Safety and Licensing Board Panel USSRC Washington, DC 20555 1

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