ML20205N476

Memorandum of Law in Support of FEMA Motion for Protective Order.* Date for Production of Documents Requested to Be Postponed Until 881208

ML20205N476
Person / Time
Site:	Seabrook
Issue date:	10/27/1988
From:	Flynn H Federal Emergency Management Agency
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20205N463	List: ML20205N458 ML20205N476 ML20205N624
References
OL, NUDOCS 8811040164
Download: ML20205N476 (9)

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October 27, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY col'24ISSICN BEFORE THE ATOMIC SAFETY AND LICDISING BOARD JUDGE IVAN W. SMITH, CHAIRMAN JUDGE JERRY HARBOUR JUDGE GUSTAVE A. LINDIBERGER, JR.

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In the Matter of )

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Public Service Co. of New Hartpshire, ) Docket No. 50-443-OL et al. ) 50-444-OL

) Offsite Emergency (Seabrook Station, Units 1 G 2) ) Planning Issues

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MD40RANDUM OF LAW IN SUPPORT OF FEDERAL D'IRGDJCY MANAGD4DJT AGDJCY'S MOTION FOR PROTECTIVE ORDER I. Introduction As stated in the accompanying Motion for Protective Order, the Massachusetts Attorney General has served Requests for Production of Docurtents f rom which the Federal Ernergency Management Agency (FD'.A) asks this Atomic Safety and Licensing Board to grant the following relief:

1. FD4A asks that the date for production of documents be postponed until December 8, 1988: and ,

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2. It asks for a ruling on its objections to the scope of discovery requests, set out below, so that the scale of the effort involved in l producing the requested documents will be cut back to the extent that its j l

objections have merit. l f

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! i l The reasons for FD%'s request and the law supporting the request are -

l discussed below.Section II presents the argument that the Massachusetts i

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Attorney General's need for the information sought by the times specified is more than balanced by the burdens which compliance would place on TDiA.

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i Section III presents FD(A's objections to specific Request for Production. -l

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An issue comanon to both sections is the nature of the pending I litigation. FDE asserts that the Massachusetts Attorney General's discovery

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effort is designed, directly or indirectly, greatly to enlarge the scope of  ;

3 the hearing. It goes far beyond determining FD%'s position and the basis for J

, it. It seeks to r vive the "corrupt process" or "undue influence" theory i i which consumed so much unnecessary time during the NHRERP (New Hampshire  !

! Radiological Emergency Response Plan] phase of these hearings. It seeks tb

) make FD%'s processes, rather than the adequacy of the Seabrook Plan for i  !

j Massachusetts Comununities (SPMC), the central focus of the hearing.  ;

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3 II. Balancinq of Needs f l l l' No one disputes that the Massachusetts Attorney General and all the other 3

} Intervenors have the right to learn what FD4A's position is in advance of the f

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j date for the profiling of their testimony. y S , Public Service Co. of New .

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Hampshire (Seabrook Station, Units 1 and 2), AIAB-864. 25 NRC 417, 427-28 4

) (1987). TD% would point out, first, that its position has already been made {

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j known with the service of the TDM Review of the SPtC on October 14 and, l

1 second, that the delay it requests will not delay the filing of profiled  ;

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i testimony since no hearing schedule has yet been set or even requested.

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i FDm's Memorandum of I,aw in Support of j Motion for Protective Order Page 2.

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v The Appeals Board decision cited above makes it clear that the unique discovery obligations placed on FEMA are directly related to the rebuttable presumption which attaches to FEMA's findings under NRC rule,10 CFR S 50.47 (a)(2) (assuming that the rule is applicable under 10 CTR S 50.47(c)(1)).

!!owever, the Appeals Board clearly spelled out what the Intervenors needed in order to meet the burden of overcoming the presumption, that is, r, full statement of FEMA's position: profiled testimony or the equivalent. Ibid.

Tha t is a far cry from the intimate details of the decision process which the Massachusetts Attorney General seeks.

This limited need for information contrasts starkly with the cost to FEMA of producing all that the Massachusetts Attorney General has called for. The attached Declaration of Laura Angelo projects the amount of time required to produce the documents requested by the Massachusetts Attorney General at 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br />. By the methods used to calculate the costs of production under the Freedom of Information Act, the costs for searching, examining documents, and copying them will exceed $4,500. In addition to the delay in the time for compliance, FEMA requests that the scope of the Requests for Production be curtailed so that they are consistent with limited needs of the Intervenors.

III. FFMA's Cbiections It is well established that discovery is not available to Intervenors until af ter contentions have been admitted. Florida Power & Light Co. (St.

Lucie Plant, Unit No. 1), ALAB-893. 27 NRC 627 (1988); 10 CFR 2.740 (b)(1).

By extension, Intervenors may not use d'.scovery to help frame contentions.

Yet that is what the Massachusetts Attorney General appears to be doing.

FD.A's Memorandum of Law in Support of Motion for Protective Order, Page 3.

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Information about contacts with the White House, other Government agencies, or the Governor of New Hampshire, for example, are designed to further develop the "corrupt process" or "undue influence" theory which has already been litigated in the NHRERP phase of these hearings. The contentions which this Board has admitted do not ratse these issues. There is no new evidence, other than the Intervenors' own interpretation of FEMA's Review of the SFMC, which supports the reintroduction of those issues. FEMA sutnats that it is not a legitimate use of the discovery process to go on a fishing expedition for such evidence. FEMA further submits that it is a corruption of the adjudicatory hearing process to consume as much time as compliance with the Massachusetts Attorney General's Requests for Production would take. It is an entirely appropriate use of the Board's discretion to limit the documents to be produced to those which serve to inform the Intervenors of FEMA's position and its basis rather than the process by which it arrived at its position.

There are many cases which have established a concept of executive process privilege relating to predecisional deliberations which occur before final agency decisions are made. The leading case in this context is United Statet v. Morgan, 313 U.S. 409 (1941). In that case, the Supreme Court was critical of the District Court for having permitted deposition and trial testimony of the Secretary of Agriculture in litigation relating to a secretarial rate order determination. The Court stated

...the secretary should never have been subjected to this examination. The proceeding before the Secretary 'has a quality resembling that of a judicial proceeding. ' . . .Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that 'it was not the function of the court to probe the mental processes of the Secretary. ' .. .Just as a judge FEMA's Memorandum of Law in Support of Motion for Protective Order, page 4.

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cannot be subjected to such a scrutiny,...so the integrity of a the adininistrative process must be equally respected.

l (Emphasis added.)

The Morgan decision reaffirmed the Supreme Court's decision in Decambra v.

Rogers. 189 U.S. 119, 122 (1903). That case involved a dispute between two parties as to the ownership of a parcel of land. The Supreme Court stated:

r It is hardly necessary to say that when a decision has beer. t made by the Secretary of the Interior, courts will not l

entertain an inquiry as to the extent of his investigation and .

knowledge of the points decided. or as to the methods _ by which he reached his determination. (Erphasis added.)

The Supreme Court had occasion to address this same issue in Chicag ,  !

Burlington & Cuincy Railway Company v. Babcock, 204 U.S. 585, 593 (1907)

, shortly after it decided DeCambra v. Rogers, supra. The petitioning railroad companies contended that a state Board of Equalization and Assessment had i l

l improperly assessed the railroads' property because the Board was subject to i

I political duress. The Court statedt  !

I The members of the Board were called, including the Governor of i the State, and submitted to an elaborate cross-examination with  !

regard to the operation of their minds in valuing and taxing l the roads. This was wholly improper. (Emphasis added.)

l These three Supreme Court cases provide the basis upon which other courts I 1  !

] have consistently ruled that inquiries into the deliberative process by which ,

l governmental decisions are made - as opposed to the rationale for the ultimate  !

a decision - are not permitted. Kaiser Aluminum and Chemetal Corp. v. United States, 157 T.Supp. 939 (U.S.Ct.C1. 1958) is one of the seminal cases which i a p addresses this proposition. Although Kaiser dealt with the production of f

documents, the principle of that case also applies in the context of deposition and trial testimony. SE ISI Corp. v. United States, 503 P.2d 553,  !

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l 3 FDiA's Memorandum of Law in Support of  !

! Potion for protective Order, Page 5. l l  ;

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e 559 (9th Cir. 1974); and Smith v. Federal Trade Commission, 403 F.Supp. 1000, 1018 (D.C.Dela. 1975) . The Court in Kaiser denied the plaintiff's request for the production of a document which contained intra-office advice on policy. The Court stated:

Free and open comments on the adventages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the ilame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. . . .There is a public policy involved in this claim of privilege for this advisory opinion - the policy of _open, f rank discussion between subordinate and chtef concerning administrative action. (E.mphasis added.) Id. at 945-946.

The Court in Kaiser relied on the Supreme Court's opinion in Morgan v. United States, supra, as support for its decision. See also Car? Zeiss Stif tung v.

V.E. B. Ca rl Zeis s , Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff'd per curiam, 384 F.2d 979 (D.C.Cir. 1967) (adopting distr.'.ct court's reasoning in its entirety), cert. denied, 389 U.S. 952 (1967); and Grumman Aircraft Eng Corp.

v. Renegotiation Board, 482 F.2d 710 (D.C.Cir.1973), rev'd. on other arounds, 421 U.S. 168 (1975).

In First Federal Savings and Loan Association v. Federal Home Loan Bank Board, 496 F.Supp. 227 (D.C.Minn.1980), the court prevented discovery directed at members of the Federal Home Loan Bank Board. The court recognized that interrogatories seeking information about the portions of the record which each Board member had consulted before reaching a decision to permit the opening of a savings and loan branch office were objectionable. The court stated:

FDW s Memorandun of Law in Support vf Motion for protective Order, page 6.

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It is well established that a party may not probe the mental processes of the decision makers. United States v. Morgan, citations omitted. Plaintiff's request is simply a sub rosa attempt to probe the mental processes of the decision makers cast in procedural terms. 496 T.Supp. at 230.

For these reasons, TEMA has objected to Requests 1 through 11 as beyond the proper scope of discovery. TEMA submits that they probe the Agency's deliberative process or that their only purpose is to support litigation of issues which are not presented by the admitted contentions, and they should therefore be stricken. The scope objection to Request No. 1 is that in asking for reports on legal issues. it seeks disclosure of attorneys' mental impressions, opinions, or legal theories, which are protected under 10 CPR S 2.740(b)(2).

The scope objection to Roquests No. 3 and 4 is two-fold. First, a challenge to the NRC rules can be the only purpose of asking for information about "changes to the regulations of the NRC and TEMA" (not specified, but clearly 10 CPR S 50.47(c)(1)] and "changes to the NRC/rD4A guidance documents, including NUREG-0654" (of which there is only one, NUREG-0654/TEMA-REP-1, Rev.

1. Supp.1, the "Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants / Criteria for Utility Offsite Planning and Preparedness", which implements the changes in 10 CPR S 50.47(c)(1)]. Secondly, the information they seek about communications about the need for a utility-sponsored plan and its design, the RAC review process, and requests for information from New Hampshire Yankee and NRC does not go to the adequacy of the SFMC. Those Requests seek to revive the "corrupt process" or "undue influence" issues which were fully litigated in the NHRIRP phase of the hearings and which have

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PEMA's Menorandum of Law in Support of I Motion for Ptotective Order, Page 7.

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not been raised by the admitted contentions in the SFMC phase. FEMA strenuously objects to any attempt to reintroduce those issues as being inappropriate, irrelevant, and unnecessarily time-consuming.

In this latter respect, the objection also applies to Requests 2 and 10, which call for production of records of internal and external communications about the SFMC to or f rom any party, particularly the Governor of New Hangshire. Similarly, the accounts of Mr. Dorovan's activity since September 1, 1987, which are sought by Request No. 11 do not have any direct bearing on the adequacy of the SPMC. TEMA objects to Request No. 7 for the saxe reason, probing TEKA's reasons for the appointment of Mr. Donovan as RAC Chairman for Saabrook is a thinly veiled attempt to resurrect the issues of the ceroval of the previous chairman, which issue has already been explored to the outer limits of its utility. ,

I Requests No. 5, 6, 8, and 9 call for disclosure of communications to and from the White House, Government agencies, Argonne National Laboratory, Idaho l National Engineering Laboratory, and the RAC. TEMA objects that they also i

I represent an attempt to revive the "corrupt process" or undue influence" j theory and that they invade the deliberative process of the Government. FEMA i

does not object to the extent that they seek to learn the outcome of the RAC 1  ;

review process. However, that result is already known to the Massachusetts ,

Attorney General, since the FEMA's Review of the SPHC has already been served  ;

on the service list.

i FEMA has also objected to Requests No. I through 7 and 9 through 11 under [

10 CTR $ 2.740(c) as being unduly burdensome and expensive. They would elicit l

I far more information than the Intervenors need, entirely aside f rom their  :

i FEMA's Memorandum of Law in Support of Motion for Protective Order, page 8.

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I right to discover it. For the reasons explained in the Declaration of Laura Angelo, it will be expensive for FD% to produce the thousands of documents the Massachusetts Attorney General has requested, and, on the whole, the documents will not directly support resolution of the issues now pending. If the Board declines to accept TC%'s scope objections, then fairness and expediency require that the Eoard offer TC% sorne guidance as to the breadth of the production effort to be undertaken.

Respectfully submitted.

/- &%

H. p FH Pg ?!!

Assistant 7fneral C- ael Federal Etergency .".anagerent Agency 500 C Street, S.W.

Washington, D.C. 20472 Telephone (703) 646-4102 i

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i FD%'s Me:rorandum of Law in Support of Motion for Protective Order. page 9.

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