ML20214C895

Memorandum & Order Granting Suffolk County Motion to Compel Answers to Interrogatories by Fema,W/Exception of Request for Order Directing FEMA to Turn Over All Documents Previously Shared Only W/Util.Served on 861120

ML20214C895
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/19/1986
From:	Frye J Atomic Safety and Licensing Board Panel
To:
References
CON-#486-1601 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8611210277
Download: ML20214C895 (7)

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SERVED NOV 201986 1 00 UNITED STATES OF AMERICA u NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 86 WJV 20 All:13 Before Administrative Judges .. _.

John H Frye, III, Chairman 0

hv Dr. Oscar H. Paris

• Mr. Frederick J. Shon In the Matter of Docket No. 50-32'c OL-5

) (EP Exercise)

LONG ISLAND LIGHTING COMPANY )

(ASLBP No. 86-533-01-OL)

(Shoreham Nuclear Power Station, Unit 1) November 19, 1986

)

MEMORANDUM AND ORDER (Ruling on Suffolk County's Motion for Order Compelling FEMA to Answer Interrogatories) 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 l 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. 6 2.740(f)(1), a motion to compel should have been filed within ten days of that date.

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motions to compel to the most compelling of circumstances. FEMA did not object to the tardiness of the motion.

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 Comnission's Rules and the 2

Memorandum of Understanding with FEMA . Suffolk asserts that FEMA is a 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 FEMA contractors.

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 understanding that it participates under 10 C.F.R. % 2.715 and has special rights and obligations under the Memorandum of Understanding.

The Memorandum of Understanding states that:

FEPA will appear in NRC licensing proceedings as part of the presentation of the NRC staff. FEMA counsel will nonnally 2

See 50 Fed. Reg.15485, April 18,1985.

4 present FEMA witnesses and be permitted at the discretion of the NRC licensing board to cross-examipa the witnesses of parties, other than the NRC witnesses, on matters involving FEMA findings and determinations, 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 fomal discovery requirements placed upon parties to NRC proceedings. Consistent with available resources, however, FEMA wilt respond infomally 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 be some merit to its position.3 It is clear, however, that in this proceeding FEMA is acting as a l

l party. FEMA has been represented by counsel throughout the emergency planning proceedings. FEMA recently filed a motion for reconsideration 3 We do not here consider whether the Memorandum of Understanding is binding on the Commission's adjudicatory boards. We note that it was executed by the Executive Director for Operations and that 10 C.F.R. Q 1.40 does not appear to have delegated authority to the ED0 to enter such agreements which bind the Comission and its Boards.

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Y a-of the October 3 Prehearing Conference Order. FEMA is taking the lead in responding to discovery requests directed to NRC Staff and FEMA contractors in this proceeding. In these circumstances, FEMA is 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 LILC0's counsel not to release any FEMA documents in its possession without first giving FEMA the opportunity to object. Suffolk argues that documents released to LILC0 may not be withheld from it and requests an order directing that FEMA immediately turn over any

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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.

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 LBP-83-61, 18 NRC 700 (1983), the Board held that, under the terms 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 i

directed to NRC consultants.

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reconsideration is decided. .Suffolk is' correct. Our order permitting FEMA's motion ~for reconsideration explicitly stated that the rulings and schedule set forth in the 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 't:at 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 information not relevant and not material to this proceeding." Suffolk is again correct. While interrogatories may be overly broad, or too remote from the subject mitter, a general objection to this effect is unavailing. Such an objection must be made to specific interrogatories and must te fully e.xplained.5

5. The above' considerations also govern claims of privilege.

FEMA may not assert :a general clain of privilege (point IV of the 1 General Response') without' identifying the information it deems to be privileged and explaining why.

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-;. . See Pennsylvania Power and Light Company, et al., (Susquehanna

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5 team Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322-23 (1980).

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i B. Specific Objections

1. In its response to interrogatory 1, which hsks# for the names and subject matter of the 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 9 A.3 above.

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2. FEM partially answered interrogatory 9 and refused to answer interrogatories 10 and 11. FEM thus refused to provide information concerning the resignation of Frank Petrone, its regional administrator.

FEM 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 should have been answered.6

3. Suffolk next complains that, in response to interrogatories 17 and 18 which enquire about communications with various entities concerning a Shoreham emergency, the LILC0 Plan, or the exercise, FEMA arbitrarily limited its response to the day of the exercise citing burdensemeness. Nonetheless, FEMA did furnish certain infomation beyond that date. Suffolk is correct that FEMA should have responded 6

Susquehanna, supra, 12 NRC at 321-22.

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0 a1 fully to these interrogatories. If the response is indeed unduly burdensome, FEMA may seek an accomodation with counsel for Suffolk or moveforaprotectivdorder.

In consideration of the foregoing, it is this 19th day of November, 1986, ORDERED that Suffolk County's motion to compel answers to interrogatories bk FEMA is, with the exception of its request for an order directing FEMA to turn over all documents previously shared only with LILCO, GRANTED.

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, FOR THE ATOMIC SAFETY AND LICENSING BOARD John \H Fry III, Chairman ADMIflIS TIVE JUDGE Bethesda, Maryland t

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