ML20151Y927
| ML20151Y927 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/28/1988 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6214 OL, NUDOCS 8805050147 | |
| Download: ML20151Y927 (13) | |
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'88 MY -3 P6 :29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g ;,r;; ---
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..t e BEFORE THE ATOM _IC SAFETY AND LICENSING BOARD in the Matter of
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Docket Nos. 50-443 OL PUBLIC SEPNICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, elg.
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Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2)
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NRC STAFF'S RESPONSE TO INTERVENORS' APPLICATIONS FOR SUPPOENAS OF NAMED NRC AND FEMA EMPLOYEES On April 14, 1988, intervenors SAPL, NECNP, the Massachusetts Attorney General and the Towns of Amesbury and Hampton filed an application for subpoenas to require the attendance and testimony of eight named FEMA employees and three named NRC employees; O a further application for subpoenas of one additional FEMA employee and one additional NPC employee was filed on Aprh 21,190E. -
The requests for subpoena generally seek to compel the named individuals to appear and testify as to the reasons for FEMA's change in position as to the adequacy of provisions in the New Hampshire Radiological Emergency
Response
Plan (NHRERP) for protection of Seabrook area beach 1/
"Application for Subpoenas Requiring Attendante and Testimony of Particular Named FEMA Employees Pursuant to 10 CFR 6 2.720(a) and NRC Simployees Pursuant to 6 2.720(h)(2)" ("Initial Request"), dated April 14,1988.
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"Application for Subpoenas Requiring Attendance and Testimony of FEMA and NRC Employees and Memorandum of Law in Support"
("Second Request"), dated April 21, 1988.
8805050147 0004pg gDR ADOCK 05000443 ch PDR I
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populations, which FEMA filed on March 14, 1988.
For the reasons set forth below, the NRC Staff opposes the issuance of the requested subpoenas ard/or moves to quash the issuance v'such subpoenas.
11.
DISCUSSION A.
No Showing of General Relevance Has Been Made.
Pursuant to 10 CFR 6 2.720(a), subpoenas directing the attendance and testimony of witnesses or the production of evidence are to be issued by the presiding officer (here, the Licensing Board Chairman).
The presiding officer "may require a showing of general relevance of the testimony or evidence sought, and may withhold the subpoena if such a showing is r ot made, but he shall not attempt to determine the l
admissibility of evidence".
T he Intervenors assert that the requested subpoenas of the FEMA employees seek evidence that is "generally relevant to the issue concerning the decision to change the FEMA position on the beach population required to be made pursuant to 10 CFR 5 50.47(a)(2)."
initial Request at ?.
No statement of general relevance has been made with respect to the subpoenas of the named NRC employees although, presumably, the intervenors would assert that these subpoenas are relevant for the same reason.
- See, e.g.,
Initial Request at 10-11; Second Request at 3-4.
The issue of why FEMA changed its position with respect to the beach populations is not relevant to the central determination which must be made by thle Licensing Board.
Rather, the Board must determine, within the scope of the admitted contentions, whether the Applicants'
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license application satisfies NRC regulations.
In this regard, the Board must evaluate the adequacy of the NHRERP as it relates to the New Hampshire seasonal beach populations.
FEMA's prefiled testimony addresses that l'ssue, and the substantive merits of that testimony should
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be explored at the forthcoming hearings.
In contrast, the reasons why FEMA determined tu adopt that position do not present substantive issues for resolution in this proceeding.
Stated otherwise, even if the intervenors could demonstrate, as they allege, that FEMA succumbed to outside pressures in deciding to adopt this position, the Board and parties would still be required to evaluate the merits of FEMA's position, b i
Further, even if the Board should determine that FEMA's reasons for changing its position (i.e., FEMA's thought process) is relevant here, the testimony of the named NRC employees would have no possible bearing on that issue.
Even assuming that various NRC employees may have communicated their opin!ons to FEMA -- as was clearly contemplated i,nd encouraged in the Memorandum of Understanding between FEMA and the
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The Staff does not contend that all 13 requested subpoenas are Irrelevant for any purpose.
Thus, the reasons why FEMA changed its substa r.tive position may have some possibfc bearing on the credibility of FEMA's designated witnesses, the weight to be accorded FEMA's testimony, and may be use ful for impeachment purposes generally.
This would warrant a finding cf relevancy with respect to the subpoenas of FEMA employees, who may have knowledge as to the factors considered by FEMA in determining to change its position.
Such potential relevancy does not apply to the subpoenas directed to the four named NRC employees, in that no showing has been made that those persons have any knowledge as to the reasons considered by FEMA in deciding to change its position, nor is their testimony likely to be useful for impeachrrent purposes.
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4-NRC El-- and even if those views were communicated to FEMA in a particularly forceful manner (which the Staff does not concede has occurred), the only issue before the Board would be to determine whether thost communications caused their recipients at FEMA to change that agency's position.
In our view, the testimony of the named NRC employees could have no possible bearing on the effect any such communication may have had upon FEMA. b 3/
"Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission," 50 Fed.
Reg. 15485 ( April 18, 1985) ("MO U").
The MOU "establishes a framework of cooperation" between FEMA and the NRC in radiological emergency response planning matters."
While assigning a lead role to FEMA in offsite emergency planning matters, the MOU further provides that the "NRC will assist in the development and review of offsite plans and preparedness through its membership on the Regional Assistance Committees (RAC)," and that where questions arise concerning offsite planning and preparedness criteria, "such question will continue to be referred to FEMA Headquarters, and when appropriate, to the NRC/ FEMA Steering Committee to assure uniform interpretation.
When the Steering Committee cannot i
agree on the resolution of an issue, the issue will be referred to NRC and FEMA management."
in sum, the MOU contemplates a collaborative and coope rative relationship between FEMA and the NRC, and seeks to promote the development of mutually agreed upon interpretations of Federal criteria for emergency planning and preparedness.
See generally, Long Island LightinLo. (Shereham C
Nuclear Power Station, Unit 1),
ALAB-773, 19 ~ NKL 1333, 1338 (1984).
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On January 6, 1988, the App!! cants subpoenaed Dr. Robert Bores and another named NRC employee, seeking to compel their testimony
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as to the substantive positions expressed by RAC members at a RAC meeting held in July 1987, as to which Mr. Thomas of FEMA had previously testified.
The Sta ff's argument that the requested testimony was not relevant to an issue before the Licensing Board (Tr. 8481-82) was rejected by the Licensing Board (Tr. 8484 - 92).
However, the Board's ruling in that instance does not compel a finding of general relevance here, where the issue raised by the Intervenors is FEMA's thought prccess rather than the existence of technical support for FEMA's position.
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Finally, the fact that FEMA's findings and determinations carry a rebuttable presumption does not warrant a different or lesser standard of general relevance required for issuance of a subpoena.
The central issue before this Board r'emains the adequacy of the NHRERP, and the focus of the Board and parties' attention should be directed to the merits of FEMA's current position:
It is also important to place in per spective the significance of the FEMA findings:
First of all, it is the ultimate institutional findings and determinations by FEMA, not the predecisonal opinions of various members of the RAC, that are centrally important.
- Moreover, although these findings constitute a
rebuttable presumption under the Commission's regulations, the spplicant bears the ultimate burden of demonstrating that the emergency plans are satisfactory and, on the basis of all the information submitted, the Licensing Board must be able to conclude that the state of emergency preparedness provides "reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
As we pointed out in our San Onofre opinion, (t]he fact that a final FEMA finding is entitled to a rebuttable presumption does not convert that agency into a decisionmaker in Commission licensing proceedings.
A failure by the four FEMA witnesses adequately to defend the FEMA findings and determinations deprives them of whatever reliability, and hence whatever presumptive effect, they might otherwise have.
Long Island L ghting Co.
(Shoreham Nuclear Power Station, Unit 1),
ALAB-773, 19 NRC 1333, 1346 (1984) (footnotes omitted) (finding an inadequate showing of need sufficient to override F EM A's claim of the executive or deliberative precess privilege).
B.
The Requests Fall to Comniv,with 10 CFR 6 2.720,(h)(2)(11 Pursuant to 10 CFR 5 2.720(h)(2)(l), "the NRC Staff will make available one or more witnesses designated by the Executive Director for l
Operations for oral examination at the hearing or on deposition regarding any matter, not privlieged, which is relevant to the issues in the proceeding. " The rule further provides as follows:
The attenciance and testimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be required by the presiding officer, by subpoena or otherwise.
Provided, that the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations require the attendance and testimony of named NRC personnel.
The provisions of 10 CFR 6
2.720(h)(2)(i) apply to "NRC personnel," and clearly govern the subpoenas of the four named NRC employees. 6,/
Here, consistent with its prior practice in other offsite emergency planning proceedings, the Sta f f has requested that FCMA provide its Interim findings and determinations concerning the issues in controversy, and has determined not to file an affirmative evidentiary case independent of FEMA.
FEMA has responded to this request ancl, pursuant to the MOU, has designated three witnesses with respect to beach population issues.
In accordance with 10 CFR I 2.720(h),
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In effect, FEMA appears in this proceeding pursuant to the MOU as an advisor to the NRC, and there may exist grounds to find that FEUA falls within the protection of the rule, in this regard, the MOU states that "FEMA will provide support to the NRC for licensing reviews," inter alla, by providing its findings and determinations on offsite plans and preparednes, which FEMA is to support by making expert witnesses available before the Licensing Boards and during any related discovery proceedings.
The MOU further provides that "FEMA will appear in NRC licensing proceedings as part of the presentation of the NRC Staff", but that "FEMA is not a party to NRC proceedings and, therefore, is not subject to formal discovery requirements placed upon parties to NRC proceedings." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), L B P-83 -61, 18 NRC 700, 701, 704 (1983).
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subpoenas of any NRC employees with respect to these matters should be danled absent a showing of "exceptional circumstances," such as by a demonstration that the named NRC employees possess direct personal knowledg'e of a 61aterial fact not known to" FEMA's witnesses.
The intervenors have altogether failed to make any showing of "exceptional circumstances," necessary to sustain their request for issuance of the subpoenas of named NRC personnel.
As indicated above, FEMA designated three witnesses in support of its position -- Dr. Jo:n Hock, Joseph Keller and William Cumming.
While the Intervenors assert that they require the testimony and attendance of fully 13 other individuals to probe FEMA's reasons for changing its beach position, cbsolutely nowhere do they address the fact they have already conducted a wide ranging and unlimited examination of these three other FEMA L
employees, continuing over the course of six deposition days, in which l
t they were permitted to examine the witnesses on both the substantive merits of FEMA's current position as well as the background and reasons for FEMA's shift in position.
In addition, while the Intervenors assert that they require the 13 subpoenaed individuals to testify as to statements and occurrences at various meetings within FEVA or between FEMA and NRC Staff employees, nowhere do they inform the Licensing i
Board that some or all of the designated FEMA witnesses attended the same meetings.
Thus, Mr. Cumming, for example, was present at those meetings and was fully available for examination on those matters.
Absent any showing of exceptional circumstances which would indicate that Mr. Cumming or other designated FEMA witnesses are unable to
testify as to the matters in question, the requests for subpoena should be rejected.
C.
The Subpoenas Are Unreasonable The interv'enors have failed to make any effort to narrow their list
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of subpoenaed individuals to a reasonable number.
To the contrary, virtually any individual named by Mr. Thomas as having knowledge of FEMA 's former or current position was the recipient of a subpoena --
regardless of Mr. Thomas' inability to ascr:be to that person any in-depth l<nowledge of the reasons for FEMA's change of position (e.g.,
FEMA Director Becton or the N P,C 's Dr.
Bores), and regardless of the duplicative nature of the requested subpoenas (e.g.,
virtually all attendees of an asserted January 1988 meeting between FEMA and NRC employces.
The Interverors' shotgun approach with these subpoenas and their lack of consideration for the disruptive impact such subpoenas must have upon FEMA's performance of its respcnsibilities, by itself, warrants that the subpoenas be quashed as unreasonable. U Further, the subpoensed individuals have not been shown to have knowledge of relevant matters beyond the knowledge of FEMA's designated witnesses, 7/
in addition, the document request attached to the subpoenas of the
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four NRC employees are unreasonably broad, in their attempt to compel production of (a) any telephone notes concerning the filing of Staff rebuttal testimony on beach shelter issues, and (b) any verbatim records of meetings any NRC employee may have had with anyone in any other fedcral agency or the Executive Branch about any matter whatsoever.
Similarly, the document request attached to subpoenas of FEMA employees unreasonably seeks documents related to any inter-agency meeting between FEMA and NRC, regardless of the meeting's subject, and (b) any documents concerning the dose reduction achieved or achlevable by the NHRERP, even if unrelated l
to dose reductions for the seasonal beach populations.
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and for this reason, too, it would be unreasonable to require either the NRC Staff or FEMA to produce additional witnesses for the Intervenors to examine.
The 'Subpoe' as of FEMA and NRC Attorneys Should Be Quashed.
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D.
n Among the subpoenas requested by the Intervenors are subpoenas directed to two attorneys who are participating qua attorneys in the proceeding -- Sherwin Turk (Staff) and George Watson (FEMA).
These requests fall to address the fundamental problems associated with an attorney's appearance as a witness in a proceeding in which he also serves as counsel.
Thus, as a general matter, attorneys appearing as advocates in a proceeding c,nould not be called as witnesses therein, unicss there is a comptiling need for their testimony. S ee, e g., U. S. v.
Schwartzbaum, 527 F. 2d 249, 253 (2d Cir.1975), cert. denied, 424 U.S.
942 (1976);
U.S.'v.
Tcmug, 694 F.
2d 591, 601 (9th Cir. 1902).
Further, even h cases where there would seem to be a compelling need for an attorney to testify, much of the attorney's testimony may well be protected by the attorney-client privliege; and an attorney will be excused from being called as a witness where it appears that the matters within his knowledge were communicated to him by his client for the purpose of obtaining advice.
See, e.g., Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-53, 18 NRC 282, 285 (1985), (quashing subpoena to depose an attorney on privileged matters).
The intervenors have altogether failed to demonstrate any comptiling need for the named attorneys to appear as witnesses in the proceeding, 4
and have failed to demonstrate that no other person is available and able l
i to testify as to the same matters, in addition, attorney Turk has served 1
for approximately two years as lead attorney for the NRC Staff in this proceeding.
Mr. Turk's knowledge of matters related to the beach population issues was gained in his capacity as an attorney representing a.
party t o' the proceeding and in the course and for the purpoec of providing legal advice and representation to that party.
Accord!ngly, virtually all of the information which the Intervenors seek from MF. Turk is likely to be subject to the attorney-client privilege and/or would involve disclosure of an attorney's wor k-product, mental impressions and legal theories.
For these reasons, in the absence of any demonstration of a compelling need for Mr. Turk to testify, the request for a subpoena directed to him should be rejected or quashed. U See g, Houston
@hting and Power Co. (South Texas Project Unit 1 and 2), L B P-8 5-19, 21 NRC 1707,1718 (1985),
CONCLUSION For the reasons set forth above, the request for subpoenas should be denied and/or any such subpoenas issued by the Board uoon a showing of general relevance should be quashed.
Respectfully submitted, b
Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, MD this 28th day of April,1988
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While these statements are likely to be true of Mr. Watson as well, concerning his representation of FEMA, FEMA counsel is better able to address his role in the proceeding.
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00LXETEP USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- $ MY -3 P6 :29 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [0 Xfif>fehh#y' C
iRANCH In the Matter of
)
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL N EW H AMPS H I RE, e_t g.
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Off-site Emergency Planning t
)
(Seabrook Station, Units 1 and 2
)
CERTI,FICATE OF SERVICE I
hereby certify that copies of "NRC STAFF'S
RESPONSE
TO INTERVENORS' APPLICATIONS FOR SUBPOENAS OF NAMED NRC AND FEMA EMPLOYEES" 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, by deposit in the Nuclear Regulatory Commission's internal mall
- ystem or, as indicated by double asterisks. express mall, this 28th day of April 1988.
Ivan W. Smith, Chairman
- Atomic Safety and Licensing Administrative Judge Board
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cortmission Washington, DC 20555 Washington, DC 20555 Custave A. Linenberger, Jr.*
Docketing and Service Section*
Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour
- Thomas G. Dignan, Jr., Esq.**
Administrative Judge Robert K. Cad, Ill, Esq.
Atomic Safety 6 Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, DC 20555 Boston, MA 02110 H.J. Flynn, Esq.**
Atomic Safety and Licensing Assistant General Counsel Appeal Panel
- Federal Emergency Management Agency U.S. Nuclear Regulatory Commission 500 C Street, SW Washington, DC 20555 Washington, DC 20472
Philip Ahren, Esq.
Calvin A. Canney -
Assistant Attorney General City Hall Office of the Attorney. General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, ME 04333 Mr. Angle Machiros, Chairman Carol S. Sneider, Esq.**
Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney General Newbury, MA 09150 One Ashburton Place,19th Flocr Boston, MA 02108 George Dcna Bisbee, Esq.
Allen Lampert Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood 23 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833 Ellyn R. Weiss, Esq.**
William Armstrong Diane Curran, Esq.
Civil Defense Director Harmon & Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Suite 430 Exeter, NH 03833 Washingtcn, DC 20009 Robert A. Backus, Esq.**
Cary W. Holmes, Esq.
Backus, Meyer & Solomon Holmes s Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, NH 03106 Hampton, NH 03842 Paul McEachern, Esq.**
J. P. Nadeau Matthew T. Brock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Judith H. Mizner, Esq.
Charles P. Graham, Esq.
Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine S Good 100 Main Street 88 Board Street Amesbury, MA 01913 Boston, MA 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen RFD #1, Box 1154 Town Office Kensington, NH 03827 Atlantic Avenue North Hampton, NH 03870 William S. Lr rd Peter J. Matthews, Mayor e
Board of Selectmtn City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, MA 01913
e..
Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 Hon. Gordon J. Humphrey Ashod N. Amirlan, Esq.
United States Senate -
Town Counsel for Merrimac 531 Hart Senate Office Building 376 Main Street Washington, DC 20510 Haverhill, MA 08130 Leonard Kopelman Barbara J. saint Andre Kopelman E Paige, P.C.
77 Franklin Street Boston, MA 02110 L
Eherv0n E. Turk Senior Supervisory Trial Attorney l
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