ML20212C303
| ML20212C303 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/19/1986 |
| From: | Cumming W Federal Emergency Management Agency |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1977 OL-5, NUDOCS 8612300003 | |
| Download: ML20212C303 (6) | |
Text
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/917 DECEMBER 19, 1986
' UNITED STATES OF AMERICA DOCKETED 4
NUCLEAR REGULATORY COMMISSION
- MNRC gj' Before the Atomic Safety and Licensing Board 86 DEC 23 M1 :53
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
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(EP Exercise)
(Shoreham Nuclear Power Station, Unit 1)
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REQUEST FOR STAY OF ISSUANCE OF SUBPOENAS AND MODIFICATION OF PROCEDURE WITH RESPECT TO DEPOSIT 0NS FEMA respectfully requests that the Board stay the issuance of subpoenas for the four exercise evaluators who are not designated as hearing witnesses or alternatively consider modifying its December 17, 1986, Order. Ruling in Part on Intervenors' Motion to Compel FEMA to Produce Witnesses for Deposition, to Permit Witnesses to Answer Depostion Questions, and to Produce Documents for the reasons set forth below.
REQUEST FOR STAY OF ISSUANCE OF SUBPOENAS The Board states in its Order of December 17, 1986, at page 5, with respect to assertion of deliberative privilege as to individuals, "Because 01 rector Becton 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 Intervencrs wish to take.
Nor could such a claim properly be asserted on a blanket basis, barring the entire testimony of particular individuals."
0612300003 861219 DR ADOCK 05000322 PDR h h
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. The Board's own statement is internally inconsistent. Deliberative privilege cannot both be properly raised and yet not be properly asserted on a
'd blanket basis.
FEMA has no wish to assert deliberative privilege on a blanket.
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basis. FEMA is, howver, asserting deliberative privilege with respect to non-designated and designated RAC (Radiological Assistance Committee) members and consultants, but only with respect to testimony concerning deliberations of the RAC. Since the Board evidences an intent to rule shortly with respect to document production, FEMA believes that the Board should stay its Order of the 17th with respect to issuance of subpoenas, so that FEMA can determine whether or not appeal of the Board's approach to discovery against FEMA with re,spect to both witnesses and document production is appropriate.
The Board has not yet ruled on the December 1, 1986, NRC Staff Motion For Clarification of the Licensing Board's Order of November 19, 1986, Compelling FEMA to Answer Certain Interrogatories.
The Board continues to treat FEMA as though it is a Party under NRC Regulations. Since only NRC can clarify FEMA status through whatever means avaiable, FEMA continues to cooperate with the discovery needs of the Intervenors under the FEMA-NRC Memorandun of Understanding of April 18, 1985, although the Board in its Order of November 19, 1986, questioned the M00's validity in a footnote.
The Board has also not yet clarified how discovery concerning FEMA review of revisions 7 and 8 of the LILCO plan will be coordinated despite FEMA's request during the Conference of Counsel on Decmeber 4, 1986.
FEMA assumes that Intervenors will wish to question the four subpoenaed evaluators to the extent any have knowledge on Revisions 7 and 8.
That review will not be available until December 31, 1986.
FEMA does not believe any testimony of designated witnesses prior to that date will do anything other than " enmesh this proceeding in procedural wrangling and delay resolution on the merits." Board's December 17th Order at page 2.
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! l REQUEST FOR MODIFICATION OF PROCEDURE The Board at pages 6 and 7 outlines a procedure to be utilized that purportedly safeguards FEMA's right to claim deliberative privilege.
E Assuming, however, that the Intervenors questions are both numerous and lengthy, there is almost no way Counsel for FEMA can adequately comply with the Board's procedural framework. The responsibilty of FEMA is as stated in the MOU that " consistent with available resources, however, FEMA will respond informally to discovery requests by parties." FEMA therfore by this filing informs the Board that the turn-around time outlined by the Board is i
inconsistent with available resources, and respectfully requests conference of counsel with the Board to establish some other procedure.
CONCLUSION FEMA for the above stated reasons respectfully requests that the Board stay its subpoenas pending issuance of its decisions on document production, FEMA's status, and until the review of Revisions 7 and 8 of the LILC0 plan is available. Alternatively, the Board should have a conference of counsel in order that a procedure may be adopted that ensures rather than defeats compliance.
Respectfully submitted, William R. Cumming Counsel for FEMA Dated the 19th day of December, 1985 l
Hashington, D.C.
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l UNITED STATES OF AMERICA Nk[
NUCLEAR REGULATORY COMMISSION
' 'd BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFE O i
-Af I
00C6Li g g " Mi In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Occket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " REQUEST FOR STAY OF ISSUANCE OF SUBPOENAS AND MODIFICATION OF PROCEDURE WITH RESPECT TO DEPOSITIONS" in the
.above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or by hand delivery as indicated by double asterisk, this 19th day of December, 1986:
l John H. Frye, III, Chairman Fabian G. Palomino, Esq.
Administrative Judge Richard J. Zahnleuter, Esq.
Atomic Safety & Licensing Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber Hashington, D.C.
20555 State Capitol Albany, NY 12224 Oscar H. Paris H. Taylor Reveley III, Esq.
Administrative Judge Hunton & Hilliams l
Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission P.O. Box 1535 l
Washington, D.C.
20555 Richmond, VA 23212 l
l Frederick J. Shon Jonathan O. Feinberg, Esq.
l Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commtssion Three Empire State Plaza Washington, D.C.
20555 Albany, NY 12223 l
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f Stephen B. Latham, Esq.
l John F. Shea, III, Esq.
Herbert H.. Br,own, Esq.**
I Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
'"2 P.O. Box 398 Kirkpatrick & Lockhart 33 West Second Street 1800 M Street, N.W.
Riverhead, NY 11901 9th Floor y
Washington, D.C.
20036-5891 Atomic Safety and Licensing Board Panel Joel Blun, Esq.
U.S. Nuclear Regulatory Commission Director, Utility Intervention Washington, D.C.
20555 NY State Consumer Protection Board Sulte 1020 Atomic Safety and Licensing 99 Washington Avenue Appeal Board Panel Albany, NY 12210 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Monroe Schneider North Shore Committee P.O. Box 231 Docketing and Service Section Wading River, NY 11792 Office of the Secretary U.S. Nuclear Regulatory Commission Philip H. McIntire Washington, D.C.
20555 Federal Emergency Management Agency 26 Federal Plaza Spence Perry, Esq.**
New York, New York 10278 General Counsel, Rm. 840 Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C.
20472 Robert Abrams, Esq.
Attorney General of the State Gerald C. Crotty, Esq.
of New York Ben Wiles, Esq.
Attn:
Peter Blenstock, Esq.
Counsel to the Governor Department of Law Executive Chamber State of New York State Capitol Two World Trade Center Albany, NY 12224 Room 46-14 New York, NY 10047 Anthony F. Earley, Jr., Esq.
MHB Technical Associates General Counsel 1723 Hamilton Avenue Long Island Lighting Company Suite K 250 Old County Road San Jose, CA 95125 Mineola, NY 11501 Hon. Peter Cohalan Martin Bradley Ashare, Esq.
Suffolk County Executive Suffolk County Attorney County Executive / Legislative Bldg.
H. Lee Dennison Building Veteran's Memorial Highway Veteran's Memorial Highway Hauppauge, NY 11788 Hauppauge, NY 11788 l
e Mr. Jay Dunkleberger Ms. Nora Bredes New York State Energy Office Shoreham Opponents Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, NY 11787 Ad Albany, New York 12223 Ellen Blackler Mr. Robert Hoffmnan New York State Assembly Ms. Susan Rosenfeld Energy Committee Ms. Sharlene Sherwin 626 Legislative Office Building P.O. Box 1355 Albany, NY 12248 Massapequa, NY 11758 Brookhaven Town Attorney Bernard M. Bordenick, Esq.
475 E. Main Street U.S. Nuclear Regulatory Agencyg Patchogue, NY 11772 7735 Old Georgetown Road Bethesda, MD 20814
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H11i1am R. Cumming
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Federal Emergency Management Agency I
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