ML20211F716
| ML20211F716 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/10/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#187-2574 OL-5, NUDOCS 8702250183 | |
| Download: ML20211F716 (28) | |
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2 57f W M CORRESPONDE.Npg February 10, 1987 DOWETED m us4RC I UNITED STATES OF AMERICA
~/ NUCLEAR REGULATORY COMMISSION
'87 FEB 24 F12:58
' Before the Atomic Safety and Licensing 8oard c a c.- -
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, Unit 1) )
)
LIST OF LICENSING BOARD ORDERS CONCERNING DISCOVERY AGAINST FEMA
- 1. Memorandum and Order dated November 19, 1986, Ruling on Suffolk County's Motion for Order Compelling FEMA to Answer Interrogatories.
- 2. Memorandum and Order dated December 17, 1986, Ruling in Part on Intervenors' Motion to Compel FEMA to Produce Witnesses for Deposition, to -
Permit Witnesses to Answer Deposition Questions, and to Produce Documents.
- 3. Memorandum and Order dated January 9, 1987, Ruling on FEMA's Claim of Deliberative Process Privilege.
4 4. Memorandum and Order dated February 6, 1987, Ruling on LILCO's Motion
' for Reconsideration of and Staff's Motion for Clarification of November 19, 1986, Memorandum and Order.
LIST OF APPEAL BOARD ORDERS CONCERNING DISCOVERY AGAINST FEMA
- 1. Memorandum and Order dated January 5, 1987, Ruling on FEMA's Request for a Stay of Discovery.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING $61RtfE2 -5. P 3 M3 -
4 Before Administrative Judges John H Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon SERVED FEB 0613g In the Matter of Docket No. 50-322-OL-5
) (EP Exercise)
LONG ISLAND LIGHTING COMPANY )
(Shcreham Nuclear Power Station, Unit 1) February 6, 1987 MEMORANDUM AND ORDER l (Ruling on LILCO's Motion for Reconsideration.of .
and Staff's Motion for Clarification of
! November 19, 1986, Memorandum and Order)
On November 19, we issued a Memorandum and Order which granted I substantially all the relief sought by Suffolk County in its November 10 motion for an order compelling FEMA to answer certain interrogatories.
This Memorandum and Order issued on the same day that LILC0 served its response in support of FEMA's opposition to Suffolk's motion, thus prompting a motion from LILCO dated November 25 seeking expedited reconsideration. Intervenors responded to the latter motion on i
December 1. Additionally, on December 1 Staff moved to clarify the November 19 Memorandum and Order. Suffolk responded to this motion by I letter of January 7, 1987.
LILCO's motion simply asserts that the arguments made in its response in support of FEMA should be considered. These are:
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- 1. FEMA should not be required to indicate the subject matter of its witnesses' testimony until a ruling on its motion to reconsider the
. admission of Contentions Ex.15 and Ex.16 is made. That ruling was handed down on December 11.
.2. FEMA should not be compelled to answer Interrogatories 9, 10, and 11 because:
- a. they concern the resignation of Frank Petrone, a matter which is raised by Contention Ex.19 which was admitted for argument only; and
- b. they seek privileged information.
LILCO's first argument is not persuasive. LILC0 clearly lacks standing to raise the second.
O 3. FEMA should not be required to respond to Interrogatories 17 and 18 on the ground that they are unduly burdensome. It is not clear how LILCO is in a position to assess the burden placed on FEMA by these interrogatories or what standing it has to raise this argument. As pointed out in the November 19 Memorandum and Order (p. 7), FEMA should
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seek an accommodation with counsel or move for a protective order.
i The principal issue raised by both LILCO's and Staff's motion 1
concerns FEMA's status in this proceeding. LILCO makes two points in l
l LILCO also supports FEMA's right to object to the disclosure to Suffolk of FEMA documents in LILCO's hands. This point is presently moot because no controversy regarding a specific document or documents has arisen. See Memorandum and Order, p. 4.
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m this regard. The first is that FEMA is not a party and has done nothing which dictates.that it be treated as a party. While we find that this argument is not as compelling as Suffolk's argument to the contrary, we deal with it in more detail below. The second is that FEMA is entitled to ' benefit from the same restrictions on discovery against it that would apply to discovery against the NRC Staff. That may well be so. However, FEMA does not assert that right, and LILCO clearly lacks standing to assert it on FEMA's behalf.
Staff's motion for clarification raises two points. First, Staff states its belief that "...if the ruling of the Board is that in performing certain acts--all of which were dcne at the discretion of the t'~'% Board and without objection from any party--FEMA has in some way N,_,) ~
transformed itself from a witness into a 2.714 party or a 2.715(c) participant...," that ruling does not square with NRC case law or regulat' ions . If the ruling is merely meant to assert that discovery is 4
available frcm nonparties to NRC proceedings, Staff has no quarrel with it. Second, Staff notes that the Memorandum of Understanding between NRC and FEMA was signed by the Executive Director for Operations at the Commission's direction and thus is binding cn adjudicatory boards. We had expressed a question as to whether it was so applicable.
l Staff's second point clears up the question as to the applicability of the Memorandum of Understanding. However, we are less satisfied with Staff's first point. First, we are surprised to read that FEMA's motion for reconsideration, appeal, or motion to bifurcate this proceeding were
() filed "at our discretion." The Memorandum of Understanding makes no
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Sl mention of such motions, referrir.g only to cross-examiration at the
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Board's discretion. Second, we must adhere to the view that, while not required to do so by the Memorandum of Understanding, FEMA is not prohibited by that document from taking on the role of a party. Just as applicants and the Staff have generic interests in NRC proceedings which permit their status as parties without a formal showing of standing, so does FEMA.
The Memorandum of Understanding recites that FEMA participates in NRC proceedings as a part of the Staff's presentation. This provision would lead one to car.clude that FEMA's role would, at a minimum, be consistent with the positions advocated by Staff. Further, one would p assume that any particular concern of FEMA's with regard to the proceeding would be supported by Staff.
This is not the case in this proceeding. FEMA has advocated and continues to advocate positions independently of Staff's views. This Board necessarily regards FEMA's positions as its own which may or may not be concurred in'by Staff. Indeed, FEMA's view of its status (a participant under 2.715(c) of the regulations) does not comport with the views of Staff set out in its motion, and we are not informed whether FEMA's view may have changed as a result of Staff's position. While we see nothing wrong with this situation, the point is that in following this course FEMA is acting as a party, not as a part of Staff's presentation. The Memorandum of Understanding does not prohibit FEMA from taking on the role of a party, and FEMA is free to folicw that course if it so chooses.
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Nonetheless, it is apparent that there is no need to consider, for purposes of this dispute, whether FEMA is in fact a party to this proceeding. Our conclusien that FEMA should be treated as a party was made in the context of a discovery dispute. There is no indication that FEMA is presently failing to respond to discovery requests directed to it. Consequently, we vacate our conclusion stated in our November 19 Memorandum and Order that FEMA is a party to this proceeding. However, FEMA should bear in mind that, should the question be presented again, it is likely that FEMA's conduct to date wculd dictate the conclusion that it is a party to this proceeding, and if that conduct continues we shall expect FEMA to shoulder the full responsibilities of a party.
LILCO's motion.for reconsideration is denied; Staff's motion for
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clarification is granted. ,
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
$tltk i Frederick J. Sh n P
ADMINISTRATIVE o DGE
)
W Dr. Oscar H. Paris M
ADMINISTRATIVE JUDGE ch H Err 2e, III, Chairman ISTRATIVE JUDGE i
/ \ Bethesda, Maryland f
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_\, (9 !- UNITED STATES OF AMERICA v
.s NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARDE JAN 12 P4 :13 5 Before Admini'strative Judges j, c Occ:'
John H Frye, III, Chairman c- : Dr. Oscar H. Paris Mr. Frederick J. Shon y[ [
SERVED J AN 1 3 1987 I )
Docket No. 50-322-OL-5 k In the Matter of )
) (EP Exercise)
LONG ISLAND LIGHTING COMPANY )
) (ASL8P No. 86-533-01-OL)
(Shoreham Nuclear Power Station, )
Unit 1) ) January 9, 1987
)
MEMORANDUM AND ORDER
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(Ruling on FEMA's Claim of Deliberative Process Privilece)
In our December 17, 1986, Memorandum and Order, we ruled in part on Intervenors' motion to compel FEMA to produce witnesses for deposition, to permit those witnesses to answer questions, and to produce certain documents. In that Memorandum and Order, we d.irected that witnesses be made available for deposition and established a procedure for asserting the deliberative process privilege with respect to their testimony. We withheld a ruling on the documents furnished by FEMA for i_n,ncamera inspection pending ccmpletion of that inspection.
We have reviewed the documents furnished by FEMA. These documents fall into two categories:
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- 1. Drafts of the Post Exercise . Assessment (PEA), related correspondence, and notes; and
- 2. Exercise Evaluation Critique Foms ccmpleted by the evaluators and certain documents labelled " Draft Timelines" which appear to be notations made by certain exercise evaluators during the course of the exercise.
Documents in the first category are privileged. They epitomize the deliberative process and are thus entitled to protection. While it may be true that these documents were prepared largely by consultants rather than members of the FEMA Regional Assistance Committee, that fact does not render the privilege inapplicable. Lono Island Liohtina Comoany (Shoreham Nuclear Power Station), ALAB-773,19 NRC 1333,1347 (1984). .
.v Furthermore, the privilege has been properly asserted in' the affidavits of Director Becton, and, with respect to this group of documents, has not been waived. However, as noted in ALAB-773, the candor of a consultants' informal advice may not be sericusly affected by disclosure of their comments on the drafts of the PEA because they will be required to justify their views at the hearing. Thus, should this issue reemerge, FEMA must provide a detailed justification for its position that disclosure of drafts of the PEA prepared by consultants would chill the RAC's deliberative processes.
Documents in the second category are not privileged. They are the record of the-factual observatiens of the exercise evaluators and thus constitute the factual bases for the PEA. These factual observations b
V are not inextricably intertwined with privileged material, nor would
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their disclosure reveal FEMA's decisionmaking process. See ALAS-773, 19 NRC at 1342.I Consequently they must be released.
Additionally, a file labelled P-30 contains much correspondence dated after April 17, 1986, the date of the PEA. _ This correspondence is not privileged. It also contains an Exercise Evaluation Critique Form of C. Amato, and a letter of March 14, 1986, frem Frank P. Petrone to Dr. Terry Surles, neither of which are privileged. Similarly, file P-54 is not privileged.
In consideration of the foregoing, it is this 9th day of January, 1987, ORDERED that FEMA's claim of privilege is upheld with respect to files P-1 through P-29, P-31 through P-34, P-45, and P-77 through P-97.2 O FEMA's claim of privilege is overruled with respect to files P-30 (to ,
i the extent that it centains documents dated after April 17, 1986, C.
Amato's Exercise Evaluation Critique Fom, and a letter of March 14, i
1 We must also state that, even were these documents deemed to be privileged, we would direct their release. Because they constitute the factual bases for the PEA, they are essential to any meaningful review of that document. The factual infomation continued in these documents is not available elsewhere. Thus Intervenors' interest would cutweigh FEMA's interest in confidentiality, 2
m There is no P-94.
- 1986, from F. Petrone to T. Surles), P-35 through P-44, and P 46 thrcugh P-76.
ATOMIC SAFETY AND LICENSING BOARD <
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ADMINISTRATI - E Or. Oscar H. Paris Y \ t W\
ADMINISTRATIVE JUDGE i
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DM NI5TRATIVE JUDGE Bethesda, Maryland t
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(V UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION
. ATCNIC SAFETY AND LICENSING BOARD Before Administrative Judges John H Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shen
)
In the Matter of ) Docket No. 50-322-OL-5
) (EP Exercise)
LONG ISLAND LIGHTING COMPANY )
(Shoreham Nuclear Pcwer Station, Unit 1) ) December 17, 1986
)
MEMORANDLH AND ORDER O (Ruling in Part on Intervenors' Motion to Compel FEMA to Produce Witnesses for Deposition, to Pennit Witnesses to Answer Deposition Questions, and to Produce Documents)
On November 18, Intervenors filed a 61-page motion requesting an order compelling FEMA to make certain witnesses a'vailable for deposition, .to permit those witnesses to answer questions, and to produce certain documents. The events which preceded the filing of the motion are complex and are recited at pages 3 through 13 of the motion.
Certain relevant events which followed the filing of the motion are related in letters of December 1 and 3 to the Scard from Kitbatrick &
Lockhart, counsel for Suffolk County, who also stated the views of the State of New York and the Town of Southampton. On December 1, FEFA O
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responded to the motion.1 That response does not take issue with the events recited in the motion, nor did counsel for FEMA bring up the Cecember 1 and 3 letters at a conference of counsel held on December 4.2 While we do not decide this dispute in its entirety in this Memorandum and Order, we do provide guidance designed to speed the discovery process. At this point, FEMA's posture with regard to discovery threatens to enmesh this proceeding in procedural wrangling and delay a resolution on the merits. Consequently, guidance is necessary to remedy seme of the problems which have contributed to bogging down the discovery process. Before doing so, we outline the discovery situation as it currently exists between FEMA and the Intervenors.
It appears that FEMA has taken the following actions with regard to .
discovery which Intervenors have attempted:
- 1. Five exercise evaluators (Laine, Jackson, Smith, Saricks, and i .
Tanzman) were made available for deposition but were unable to answer i
questions concerning their observations during the exercise without reference to their notes, exercise evaluation forms, and exercise sumaries . All of these had been turned over to FEMA's counsel to l review for privileged information. This review was not completed prior l
1 In its esponse, FEMA also moved for a protective order.
Intervenors responded to this motien on December 11.
2 In a letter to the Board of December 3, Staff counsel indicated that Staff would not file a response to the motion. LILCO did respond to the motion on December 1, but did not quarrel with the b
I events stated by intervenors.
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s to the depositions. Additionally, these witnesses were directed not to answer certain other questions on the grounds of the deliberative process privilege. (See December 1 letter, p. 3.) It appears that seme of the notes, evaluation forms, and surnaries may be included in the documents which FEMA has provided the Board under seal. (See para. graph 3,below.)
Four exercise evaluators who work for organizations other then FEMA (Herbert Fish - Department of Energy, Cheryl Malina - Department of Agriculture, Ronald Bernacki - Food and Drug Administration, and paul Giardina - Environmental Protection Agency) were not produced for deposition. Counsel for FEMA indicated that, assuming he received authorization to represent these individuals, they would not be produced. However, he also indicated that he would not object to their depositions if he did not receive authorization to represent them.
(Motion,p.9.)
- 2. FEMA has designated six witnesses to testify at the hearing:
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Roger B. Kowieski, Philip McIntire, Thomas E. Baldwin, Joseph H. Keller, Richard Donovan, and Ihor Husar. On November 10, FEMA's counsel informed counsel for Intervenors that he would not produce witnesses L Kowieski, Xeller, and Baldwin for deposition on the grounds of the deliberative process privilege. (Motion, pp. 5-10.) Counsel for FEMA 1
l also advised that he would not permit designated witnesses Wusar, McIntire and Donovan answer questions concerning the admitted j contentions or the scope of their testimony. (See letter of December 3, pp. 1-2) l
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- 3. FEMA has withheld certain dccuments which were requested on the grounds of the deliberative process privilege. (See motion, pp.
11-12; FEMA's response to the motion and acccmpanying letter from counsel of December 1 and FEMA counsel's letter to the Board of December 15.) These have been provided to the Board for 3 camera review.
As a result of these actions, Intervenors request an order directing:
- 1. FEMA to produce its designated witnesses Xowieski, Baldwin, and Keller, and exercise evaluators Fish, Malina, Bernacki, and Giardina for deposition;3
- 2. FEMA to permit witnesses to respond to questions concerning events prior to, during, and after the exercise provided the questions are relevant to the admitted contentions; and
- 3. FEMA to produce documents which are responsive to requests
, which are relevant to the admitted contentions.
In support of these requests', Intervenors argue that:
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- FEMA has not properly asserted any privilege;
- If properly asserted, the privilege is not applicable; If properly asserted and demonstrated to be applicable, the privilege has been waived; and
- If the privilege is properly asserted and applicable, and 3
In the event counsel for FEMA cannot ccmpel attendance of the exercise evaluators, Intervenors request the issuance of subpoenas.
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has not been waived, the Intervenors' need for the information outweighs FEMA's need for confidentiality.
FEMA has asserted a claim of deliberative process privilege with respect to three cartons of documents which it has furnished the Board for in camera examination. (See affidavit of Julius W. Becton, Jr.,
Director of FEMA, attac.hed to FEMA's response.) Because Director Becten makes no mention of a claim of privilege with respect to testimony in his affidavit, FEMA has not properly raised such a claim with respect to the depositions'which Intervenors wish to take. Nor could such a claim
. properly be asserted on a blanket basis, barring the entire testimony of
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particular individuals.
l Consequently, the Board will review the documents which have been furnished by FEMA to determine the applicability of the privilege in light of the arguments for and against disclosure and issue an appropriate ruling. Because a claim of privilege has not been properly asserted with respect to testimony, FEMA is to make its designated witnesses and exercise evaluators # available for deposition and permit them to respond to questions concerning their testimony and the admitted contentions. In this regard, FEMA is reminded that (o]bviously, the county is entitled to probe the FEMA findings, explore their bases, assess their accuracy, and determine what reliance should be placed on them. To that 4
We have issued subpoenas requested by Intervenors for the four '
exercise evaluators.
end, FEMA will make its sponsoring witnesses available for deposition and cross-examination. They may be examined as to
- the soundness and reliability of the scientific assumptions or professional judgments underlying the FEMA findings.
(ALA8-773,19 NRC at 1343-44.) While we recognize that no FEMA findings exist with res,pect to the exercise, FEMA has stated conclusions in its Post Exercise Assessment. .For purposes of this proceeding, these conclusions are to be opened to examination to the same extent that findings would be if they existed.
We recognize that claims of deliberative process privilege may be raised in response to specific questions posed to witnesses at a
- s deposi tion. In the event that these claims are raised, the following procedure is to be followed
. 1. At the conclusion of a deposition in which specific questions are objected to on the basis of the deliberative process or another privilege, the Intervenors are to state on the record the specific questions to which they seek answers, together with a detailed l
I recitation of litigative need.
- 2. No later than the second day following the deposition, Intervenors are to deliver a copy of the deposition to the Board and FEMA is to deliver to the Board and counsel the affidavit of Director l Becton stating why the privilege applies and what harm the disclosures I
- would cause. Additionally, FEMA is to deliver to the Board for in camera review a detailed summary of the responses which would have been made absent the claim of privilege.
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0-In adopting this procedure, the Board specifically disapproves the
. practice adopted by counsel for FEMA of refusing to make witnesses available for deposition and refusing to.pennit answers to certain questions by those witnesses who are made available. If counsel wishes to assert a claim of privilege, he must follow the above procedure. If counsel wishes to assert another objectiel, he is to follow the procedure set down in 10 CFR 2.740a(d), and the witness is to be
. pennitted to answer. The procedure which counsel has followed to date greatly threatens the discovery schedule established by the Board and wastes the resources of the parties. It shall be discontinued.
It is so ORDERED.
ATOMIC SAFETY AND LICENSING BOARD Frederick J. Shon
- ADMINISTRATIVE JUDGE CM i. . CL$' t Dr. Oscar H. Paris ADMINISTRATIVE JUDGE
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John H Frie, III, Chainnan ADMINISTRATIVE JUDGE Bethesda, Maryland
- Judge Shon concurs on this Memorandum and Order but was unavailable to sign.
SERVED NCv 201986 r~N (d
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UNITED STATES OF AMERICA .
' NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 86 NOV 20 All :12 Before Administrative Judges CFF.L . f John H Frye, III, Chainnan DCCri ...
Dr. Oscar H. Paris Mr. Frederick J. Shan .
)
In the Matter of ) Docket No. 50-322-OL-5
) (EP Exercise)
LONG ISLAND LIGHTING COMPANY )
) (ASLBP No. 86-533-01-OL)
(Shoreham Nuclear Power Station, )
Unit 1) ) November 19, 1986
)
l MEMORANDUM AND ORDER _
(Ruling' on Suffolk County's Motion for Order Compelling FEMA to Answer Interrogatories) l 1
On November 10, one day after the deadline for such motions ,
Suffolk County moved for an order compelling FEMA to answer certain of its first set of interrogatories. On November 13, FEMA responded, noting that "~t]he representations by Counsel for Suffolk appear to adequately represent the basis for FEMA's response or non-response to the First Interrogatories . . .", that FEMA should not be required to respond in advance of the Board's ruling on its motion for reconsideration, and that the Board should instruct counsel to reserve FEMA's answers and objections to these interrogatories were dated October 30. Under 10 C.F.R. I 2.740(f)(1), a motion to ccmpel O should have been filed within ten days of that date.
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Suffolk begins its discussion by addressing certain portions of FEMA's " General Response" to the interrogatories, and then addresses FEMA's specific objections. We address Suffolk's points seriatim.
A. General Responses
- 1. In footnote 5 (p. 4) of the motion, Suffolk addresses FEMA's assertion in point II of its General Response to the interrogatories that it is not subject to discovery under the Ccmission's Rules and the 2
Memorandum of Understanding with FEMA . Suffolk asserts that FEMA is a -
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V party and subject to the rules which govern other parties, pointing out that FEMA has in all respects acted as a party to this proceeding and has taken the responsibility in this portion of the proceeding to respond to discovery requests directed to NRC Staff and FEFA contractors.
l In its response to the motion, FEMA notes that this issue is of importance to the future conduct of the proceeding. FEMA then states its understantiing that it participates under 10 C.F.R. 5 2.715 and has special rights and obligations under the Memorandum of Understanding.
The Memorandum of Understanding states that:
l l FEMA will appear in NRC licensing proceedings as part of the presentation of the NRC staff. FEMA counsel will nomally See 50 Fed. Reg.15485, April 18,1985.
.- present FEMA witnesses and be permitted at the discretion of the NRC licensing board to cross-examine the witnesses of '
parties, other than the NRC witnesses, on matters involving FEMA findings and detenninations, policies, or operations; however, FEMA will not be asked to testify on status reports.
FEMA is not a party to NRC proceedings and, therefore, is not subject to fonnal ciscovery recuirements placed upon parties to NRC proceedings. Consistent with available resources, however, FEMA will respond infonnally to discovery requests by parties. Specific assignment of professional responsibilities between NRC and FEMA counsel will be primarily the responsibility of the attorneys assigned to a particular case.
In situations where questions of professional responsibility cannot be resolved by the attorneys assigned, resolution of any differences will be made by the General Counsel of FEMA and the Executive Legal Director of the NRC or their designees. NRC will request the presiding Board to place FEMA on the service list for all litigation in which it is expected to participate. (emphasis supplied)
The above description of FEMA's role leads one to the conclusion that FEMA is limited to providing witnesses on behalf of NRC Staff and that the function of FEMA's counsel is limited to protecting those witnesses. Were FEMA's role in this proceeding so limited, there might i
be some merit to its position.3 It is clear, however, that in this proceeding FEMA is acting as a party. FEMA has been represented by counsel throughout the emergency planning proceedings. FEMA recently filed a motion for reconsideration i
3 We do not here consider whether the Memorandum of Understanding is binding on the Ccmission's adjudicatory boards. We note that it was executed by the Executive Director for Operations and that 10 l
C.F.R. 5 1.40 does not appear to have delegated authority to the EDO to enter such agreements which bind the Ccmission and its Boards.
4-C'N . 1 V l of the October 3 Prehearing Conference Order. FEFA is taking the lead in responding to discovery requests directed to NRC Staff and FEMA l contractors in this progeeding. In these circumstances, FEMA is l obligated to respond to discovery requests.4
- 2. Suffolk County next objects to the assertion (point X of the General Response to the interrogatories) that FEMA's counsel has instructed LILCO's counsel not to release any FEMA documents in its possession without first giving FEPA the opportunity to object. Suffolk argues that documents released to LILCO may not be withheld from it and requests an order directing that FEMA frmradiately turn over any documents it has shared only with LILCO. While we have difficulty imagining what sort of objection FEMA may have to the production of such documents to Suffolk, we think it best not to overrule such objections before they are made. Consequently, we do not order a wholesale turnover. However, LILCO.is to produce such documents requested by Suffolk or enter an objection on FEMA's behalf within the time provided by the rules.
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- 3. Suffolk objects to FEMA's assertion (point XI of the General Response) that it should not be required to respond until its motion for 4 In LSP-83-61,18 NRC 700 (1983), the Board held that, under the tenns of an earlier Memorandum of Understanding (45 Fed. Reg. 82713, 1980), FEMA was to be treated as an NRC consultant and thus was entitled to the benefits of the limitations on discovery directed to NRC censultants.
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reconsideration is decided. Suffolk is correct. Our order pemitting FEMA's motion for reconsideration explicitly stated that the rulings and schedule set forth in th,e October 3 Prehearing Conference Order were not stayed. FEMA is not excused from compliance with that Order or from the need to respond to discovery on contentions admitted by that Order.
- 4. Suffolk next objects to FEMA's general complaint (point VIII of the Genearal Response) that the interrogatories are ". . . overly broad, unduly burdensome, and designed to gain infomation not relevant and not material to this proceeding." Suffolk is again correct. While interrogatories may be overly broad, or too remote from the subject matter, a. general objection to this effect is unavailing. Such an objection must be made to specific interrogatories and must be fully explained.5 t
- 5. The above considerations also govern claims of privilege.
FEMA may not assert a general claim of privilege (point IV of the General Response) without identifying the information it deems to be privileged and explaining why, i
0 See Pennsylvania Power and Light Ccmoany, et al., (Susquehanna l Steam Electric 5tation, Units 1 ano 2), ALAB-ol3,12 NRC 317, 322-23 (1980).
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s B. Specific Objections
- 1. In its response to interrogatory 1, which asks for the names and subject matter of th'e testimony of FEM's anticipated witnesses, FEM furnished the names but refused to indicate the subject matter of the testimony of its anticipated witnesses. pending a ruling on its motion to reconsider. This objection is overruled. See ta A.3 above.
- 2. FEMA partially answered interrogatory 9 and refused to answer interrogatories 10 and 11. FEMA thus refused to provide information t
concerning the resignation of Frank Petrone, its regional administrator, t FEMA apparently bases its refusal on the fact that Contention Ex.19, which specifically raises this matter, was admitted for argument only.- --
Suffolk correctly points out that information concerning the Petrone resignation could lead to evidence which is relevant to other contentions. Thus the interrogatories shculd have been answered.6
- 3. Suffolk next complains that, in response to interrogatories 17 j
and 18 which enquire about communications with various entities concerning a Shoreham emergency, the LILCO Plan, or the exercise, FEMA arbitrarily limited its response to the day of the exercise citing burdensomeness. Nonetheless, FEMA did furnish certain information beyond that date. Suffolk is correct that FEMA should have responded l
6 Susquehanna, suora, 12 NRC at 321-22.
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fully to these interrogatories. If the response is indeed unduly ,
burdensome, FEMA may seek an accennodation with counsel for Suffolk or move for a protective order.
In consideration of the foregoing, it is this 19th day of November, 1986, ORDERED that Suffolk County's motion to compel answers to interrogatories by FEMA is, with the exception of its request for an order directing FEMA to turn over all documents previously shared only with LILCO, GRANTED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD John H Fr , III, Chairinan ADMI)NIS IVE JUDGE-l Bethesda, Maryland d
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UNITED STATES OF AMERICA
- - NUCLEAR REGULATORY COMMISSION
'87 JAN -5 P3 39 ATOMIC SAFETY AND LICENSING APPEAL SCARD g -, :v: ..
4 Administrative Judges: py. ,
Alan S. Rosenthal, Chairman January 5, 1987 Gary J..Edles Howard A. Wilber n
) SEE"E0 J AN -61S87 s ,
)
In the Matter or
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
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(Shoreham Nuclear Power Station, ) (EP Exercise)
Unit 1) )
)
MEMORANDUM AND ORDER On December 31, 1986, the Federal Emergency Management-Agency (FEMA) filed a petition seeking leave to appeal frcm
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' so much of the Licensing Board's December 11, 1986 order as reaf firmed the admission of contentions E:: 15 and Ex 16 in the emergency planning exercise phase of this operating sN License proceeding involving the Shoreham nuclear facility." .
In connection with its petition, FEMA requested a stay of discovery with respect to those contentions pending our determination of the merits of the controversy.
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'~ Alternatively, FEMA askec that we either direct the Licensing Board to certify the matter to the Cctmission or certify it ourselves.
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.t Action on the petition necessarily must await the.
responses of the' other parties.2 There is, however,'no reason to grant the request that discovery be. stayed pendente lite.3 FEMA has not explicitly asserted, let alone i ' demonstrated, that, unless it is granted such a stay,.it:
will suffer. irreparable harm. It is thus confronted with the settled principle that "one who establishes no amount of
- irreparable injury is.not entitled to a stay in the absence of a showing that a reversal of the decision under attack is 4
not merely likely, but a virtual certainty."4 In this instance, it is not a present certainty even that the Licensing Board's admission of the contentions in question .;
v will be found to warrant interlocutory review.
Stay denied; decision on the FEMA petition deferred i
pending receipt of responses.
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- 2 Inasmuch as the acccmpanying certificate of service reflects that the petition was served by ordinary mail, the l
responses of all parties with the excepton of the NRC staff will be due en January 15; the staff's response will be due on January 20. See 10 CFR 2.710, 2.730(c).
3 According to the Licensing Scard's December 11 order (at 24), all discovery should be concluded by January 21.
4 Cleveland Electric Illuminatir.c Cc. (Perry Nuclear s
Power Plant, Units 1 and 2), ALAS-820, 22 NEC 743, 746 n.8 s (1985).
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3 It is so ORDERED.
FOR THE APPEAL BOAPS C . ML=
C. JeGQ~Sh6emaker Secre%ry to the Appeal Board f
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