ML20214D619
| ML20214D619 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/19/1986 |
| From: | Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1610 OL-5, NUDOCS 8611240172 | |
| Download: ML20214D619 (12) | |
Text
l(0l0 LILCO, Nov:mber 19,1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
$[
'86 NOV 21 P12:00 Before th.e Atomic Safety and Licensing Board CFFQ.y;[-.
' dss In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S RESPONSE IN SUPPORT OF FEMA'S RESPONSE TO SUFFOLK COUNTY'S MOTION FOR ORDER COMPELLING FEMA TO ANSWER INTERROGATORIES LILCO responds here in support of the Federal Emergency Management Agency's (FEMA) response to Suffolk County's Motion for Order Compelling FEMA to Answer In-terrogatories (hereinaf ter cited as "Suffolk Co. Motion") served on FEMA on November 12,1986.M On October 15, 1986, FEMA was served with interrogatories by Suffolk County.
FEMA responded to these interrogatories in two ways. First, FEMA set forth twelve
" General Responses" pertaining to all 24 Interrogatories. Second, FEMA responded spe-cifically to each of the Interrogatories. Suffolk County now seeks to persuade this Board to compel FEMA to respond more fully to several of its Interrogatories.
1/
On November 18, 1986, Suffolk County, the State of New York, and the Town of Southampton filed with this Board a Motion for Order Compelling FEMA to Produce Witnesses for Deposition, to Permit Witnesses to Respond to Deposition Questions, and to Produce Documents. While this new Motion to Compel raises arguments similar to those in Suffolk County's Motion for Order Compelling FEMA to Answer Interrogato-ries, LILCO,in responding to the present Motion, reserves the right to respond fully to the November 18,1986 Motion.
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I. FEMA's " General Responses" Are Permissible While it is true that general objections to interrogatories are usually unacceptable in NRC proceedings, FEMA is not precluded from making such responses.
FEMA's general objections, for the most part, set forth its rights and privileges per-talning to its response to these Interrogatories. Most significantly, FEMA states that it does not waive any of its rights by responding to the Interrogatories. Such responses cannot be objected to given the clarifying nature of the general responses especially in light of FEMA's position in the case as a non party subject only to informal discovery.
A.
FEMA Is Not Required to Comply with Formal Discovery Contrary to Suffolk County's assertions, FEMA is correct in stating that it is not a party to the proceeding and that it is not subject to formal discovery. The FEMA-NRC Memorandum of Understanding ("MOU"), dated April 18, l'985, states:
FEMA is not a party to NRC proceedings and, therefore, is not subject to formal discovery requirements placed upon parties to NRC proceedings. Consistent with available re-sources, however, FEMA will-respond informally to discovery requests by parties.
50 Fed. Reg. 15,485, 15,487 (1985).
Suffolk County, however, insists that FEMA is a party because it is represented by counsel and has filed it own pleadings. Such facts do not transform a non party into a party and are not inconsistent with the Memorandum of Understanding. The MOU in-dicates that both the NRC and FEMA will be represented by counsel and shall share the responsibilities for the particular case.
Suffolk County also incorrectly takes issue with FEMA's claim that it is not sub-ject to formal discovery since according to point X of its " General Response " " FEMA intends to provide the lead role in responding to discovery requests for NRC staff and FEMA contractors for this proceeding." (Suffolk Co. Motion at 5 n.5). Again, the MOU, l
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- as an administrative matter, delegates the " assignment of professional responsibilities between NRC and FEMA counsel" to those attorneys assigned to the case. Obviously, the MOU contemplated the delegation of primary responsibility for discovery to one or the other counsel. This administrative arrangement does not alter the fact that FEMA is only subject to informal discovery. Such a policy circumvents neither "the letter nor the spirit of NRC rules and regulations governing the conduct of discovery," contrary to what Suffolk County contends. (Suffolk Co. Motion at 3).
Beside the fact that this arrangement was agreed to by the NRC, Section 2.740(f)(1) of the regulations under which Suffolk County seeks to compel further an-swers to its interrogatories does not apply to the NRC staff or to FEMA as a consultant to the NRC. Section 2.740 itself states that this section "does not apply to requests for the testimony or interrogatories of the regulatory staff...."2/ 10 C.F.R. S 2.740(f)(3).
Instead, NRC personnel are subject to discovery under S 2.720(h). This section does not provide for a motion to compel as does S 2.740 but rather requires response where the
" answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other
. sourbe..,.." 10 C.F.R. 2.720(h)(2)(ll).
FEMA in turn cannnt be compelled to respond further to the interrogatories since it falls within the definition of "NRC personnel." "NRC personnel" means, "for the purpose of SS 2.720 and 2.740 only, persons acting in the capacity of consultants to the Commission, regardless of the form of the contractual arrangement under which such persons act as consultants to the Commission;..." 10 C.F.R. S 2.4(p). In an earil-er decision of the Atomic Safety and Licensing Board in this case, it was decided that 2/
While 5 2.740 in general does not apply to such interrogatories, the provisions of S 2.740(c), " Protective order," and S 2.740(e), " Supplementation of responses," are still applicable. See SS 2.720(h)(2)(iv) and 2.740(f)(3).
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b O FEMA was a consultant to the NRC in emergency planning matters according to a 1980 Memorandum of Understanding.W Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-61,18 N.R.C. 700, 701 (1983).M Taken as a whole, the MOU's statement that FEMA is only required to respond informally to discovery requests is simply consistent with the provisions related to in-terrogatories directed to NRC staff. FEMA, as a representative or consultant of the NRC staff, should be subject to no greater discovery requirements than that required of the NRC staff.
B.
FEMA Has the Right to Review and to Object to the Discovery of All Documents Prepared by FEMA Contractors Suffolk County's objection to point X of FEMA's " General Response" is also mis-placed. In point X, FEMA states "no documents prepared at the direction or request of FEMA officials, employees, or its contractors may be released without FEMA Counsel being given the right of review and inspection to enter appropriate objection." (FEMA General Response to Suf folk County's First Request For Production of Documents and First Set of Interrogatories to FEMA (hereinaf ter cited as " FEMA's General Response")
at 3. Suffolk County complains that " FEMA intends to pre-screen and perhaps object to the release" of FEMA generated documents even though LILCO has already reviewed them. Such an object ignores LILCO's role in the preparation of the exercise scenario.
3/
The 1980 MOU was superceded by the present Memorandum of Understanding.
While that MOU is no longer in effect, the language relied upon in the 1983 LILCO deci-sion is virtually the same as that found in the 1985 Memorandum of Understanding. Sig-nificantly, the current MOU adds that FEMA's position before the NRC hearing pro-ceeding is "as part of the presentation of the NRC staff" and as a nonparty subject only _
to informal discovery where consistent with available resources. 50 Fed. Reg. at 15,485.
g There, the ASLB denied Suffolk County's motion to compel discovery of a FEMA employee. The Board beM that since FEMA was a NRC consultant, the employee was protected from discovery under S 2.720(h)(2)(1).
1
b,
In assessing offsite preparedness, FEMA relies on outside organizations, such as LILCO, to prepare the exercise scenario which is then reviewed and revised by FEMA. Accord-ingly, LILCO functioned as a consultant to FEMA in preparing the exercise scenario.
Documents prepared by LILCO for FEMA are in essence FEMA documents under the ul-timate control of FEMA. Therefore, it is totally permissible for FEMA to review and inspect any of these documents for [50ssible objections to discovery.
II.
FEMA Has Adequately Responded to Each of Suffolk County's Interrogatories Although Suffolk County takes issue with the method by which FEMA answered its Interrogatories, it has only requested that the Board compel FEMA to respond more fully to six of its 24 Interrogatories. While FEMA is not sub!cet to formal discovery in 1
NRC proceeding, it has responded to each of Suffolk County's Interrogatories to the fullest extent possible given its available resources and the present stage of the pro-ceeding.
A.
Interrogatory No.1 In Interrogatory No.1, Suffolk County requested that FEMA identify each person FEMA expects to call as a witness and state the subject matter about which they will testify. FEMA responded with a list of witnesses. It declined, however, to state the i
subject matter upon which each witness would testify "until the Board rules on FEMA's October 27,1986 Motion for reconsideration of the Board's October 3,1986 Order...."
(FEMA's Specific Response to Suffolk County's First Request for Production of Docu-ments and First Set of Interrogatgories to FEMA (hereinaf ter cited as " FEMA's Specific Response"), Interrogatory No.1). Until the Board rules on FEMA's Motion for Reconsid-eration, it is not possible to state the subject matter upon which its witnesses will testi-fy because the subject matter is unknown.
b '
l Contentions EX 15 and 16, the subject matter of FEMA's Motion for Reconsid-eration, challenge the scope and process of development of the February 13,1986 Exer-cise, rather than the quality of any of the participants' performance or any implica-tions of that performance for the viability of the offsite emergency plan. If the Board should rule that either or both of these Contentions should not be admitted, the subject matter of the witnesses' testimony is likely to be substantially different than if the Contentions are upheld. If FEMA is required to specify the subject matter of the testi-mony under the presently admitted Contentions, and the Board later decides not to admit Contentions EX 15 and 16, FEMA witnesses will not only be required to prepare for testimony on broader issues than necessary but may also be required to testify on is-sues totally irrelevant to the proceeding.
FEMA is also protected from discovery of the subject matter of its witnesses' testimony until af ter the Board rules on FEMA's Motion for Reconsideration under the
" deliberative process privilege." Since Contention EX 15 and 16 involve the scope and process of the formulation of the Exercise Plan, testimony relating to these issues would necessarily involve recommendation and deliberations concerning the decisions and policies surrounding the development of the Exercise. Even if the Board rules that Contention EX 15 and 16 are relevant, FEMA witnesses are protected from responding to these issues under the deliberative process privilege.W Furthermore, contrary to Suffolk County's contentions, FEMA is not amending unilaterally the discovery schedule set by the Board, and FEMA is not asking to be ex-cused from complying with the Board's October 3 Order. FEMA's Motion for Reconsid-eration was filed in a timely manner and should not affect the discovery schedule. In-deed, FEMA has asked the Board to reconsider its Order in all respects except as to 5/
For a more detailed discussion of the " deliberative process privilege," see the following section II.B. below.
b '
scheduling and discovery. Upon receiving the Board's Order concerning its Motion for Reconsideration, FEMA will be able to state properly the subject matter of which its witnesses will testify.
B.
Interrostatory Nos. 9,10 and 11 In Interrogatory Nos. 9,10 and 11, Suffolk County seeks discovery of certain FEMA documents pertaining to the production of the FEMA Report. Interrogatory Nos.
10 and 11 specifically focus on communications concerning statements made during the public hearing held af ter the Exercise on February 15,1986 by Frank Petrone, who re-4 signed over a disagreement about whether FEMA could render an opinion on a reason-able assurance finding. The documents requested in Interrogatory No. 9 concern as-pects of the report related to Interrogatory Nos.10 and 11.
1 In response, FEMA correctly refused to identify the documents since these Inter-rogatories go directly to the issue of whether FEMA's inability to make an ultimate rea-sonable assurance finding was a fundamental flaw in the LILCO Plan.SI In Contention EX 19, this very issue was presented to the Board and the Board determined that no factual dispute existed. Rather, the Board decided that the issue was a matter for legal argument only. Although the Board has refused to accept evidence on this issue, Suffolk County requests that the Board compel FEMA to respond regardless of its ruling.
To counter FEMA's objection, Suffolk County contends that release of this infor-mation may " lead to evidence regarding the nature, scope, and extent of the Exercise."
t g/
It is important to note that it is not FEMA's responsibility to make a dispositive
" reasonable assurance" finding. Rather, in NRC licensing proceedings the NRC is re-i l
sponsible for determining that " reasonable assurance" exists that adequate protective measures can and will be taken based upon rebuttable FEMA findings and determina-tions on whether offsite plans are adequate.10 C.F.R. S 50.47(a)(2).
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(Suffolk Co. Motion at 13). As noted above, however, Interrogatory Nos.10 and 11 focus on communications concerning statements made by Frank Petrone during the public hearing and on those statements concerning his resignation. As Suffolk County admits, (Suffolk Co. Motion at 12), Petrone resigned because FEMA refused to state that it could not give a reasonable asssurance finding without state and local participation in the Ex-l ercise. No matter how hard Suffolk County tries to persuade this Board to the con-trary, this matter goes directly to the heart of Contention EX 19. Suffolk County can-not be permitted to circumvent the Board's decision to hear only legal arguments on Contention EX 19 when it is clear that Interrogatory Nos.10 and 11 are intended to dis--
4 cover factualinformation en Frank Petrone's disagreement with FEMA on its ability to i
make a reasonable assurance finding.
Even without the Board's restriction on discovery in Contention EX 19, FEMA would be protected from responding further to Interrogatory Nos. 9,10 and 11 under the
" deliberative process privilege" which was successfully asserted in an earlier decision in this case.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-773,19 N.R.C.1333 0984).II In that decision, the Atomic Safety and Licensing Appeal Board held that FEMA was not required to turn over certain agency documents concerning FEMA's emergency preparedness determinations because they were pro-,
tected by the " executive or deliberative process privilege." As the earlier decision in this case noted "[t]he deliberative process privilege protects from discovery govern-i mental documents reflecting advisory opinions, recommendations and deliberations i
comprising part of a process by which governmental decisions and policies are 2/
While FEMA did not directly raise this privilege as to Interrogatory No. 9,10 and 11, it reserved its right to do so in Point II of its " General Response" where it stated that
" FEMA does not by responding... [ to these Interrogatores] indicate that discovery for.
all parties in this proceeding with respect to FEMA is not governed by Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NRC 1333 (1984)."
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formulated." IA, citing NLRB v. Sears, Roebuck & Co., 421 U.S.132,150 (1975); United States v. Leggett & Platt, Inc., 542 F.2d 655, 658-59 (6th Cir.1976), cert. denied, 430 U.S. 945 (1977). In this case, Interrogatory Nos. 9,10 and 11 seek discovery of FEMA doc-uments reflecting the process by which the FEMA Post-Exercise Report was developed.
Specifically, Suffolk County requests that FEMA identify and produce draf t reports, documents containing the basis for those reports, and most significantly, communica-tions concerning statements and comments made during the public hearing regarding the deliberation of the content of the FEMA Report. Not only is such information irrel-evant to the proceeding since Contention EX 19 has been admitted for legal argument only, these documents are protected from production under the deliberative process privilege. Therefore, FEMA cannot be compelled to produce them.
C. Interrogatory Nos.17 and 18 In Interrogatory No.17, Suffolk County requested that FEMA "[i]dentify all communications, concerning the response to a Shoreham emergency, the LILCO Plan, or the Exercise between FEMA personnel" and eleven categories of people. In Interrog-atory No.18, Suffolk County request all documents concerning the communication. In response, FEMA states "that the inclusion of ' response to a Shoreham emergency' and
'the LILCO plan' to the scope of the interrogatory is overly broad and burdensome" since these documents cover a period of about two years. Instead, FEMA provided
" communications of FEMA personnel during the exercise, made in the process of carry-ing out evaluation assignments." (FEMA's Specific Response, Interrogatory No.17).
Although FEMA is not subject to formal discovery, it has responded to Interroga-tory Nos.17 and 18 " consistent with available resources" according to the NRC-FEMA MOU. 50 Fed. Reg. at 15,487. As FEMA stated in its responses to Interrogatory No.17, any further discovery would be burdensome and thus not required under the 1985 MOU.
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id b Furthermore, the scope of the interrogatories is overbroad in that much of what is being requested is irrelevant to whether the LILCO Plan is adequate.
Consistent with FEMA's position as a non party subject only to informal discov-ery and the less stringent discovery requirements of NRC. personnel, FEMA has ade-quately responded to Interrogatory Nos.17 and 18, given the fact that these interroga-tories are unduly broad and overly burdensome.
CONCLUSION For the reasons stated above, LILCO requests that the Licensing Board deny Suffolk County's Motion For Order Compelling FEMA to Answer Interrogatories.
Respectfully submitted, Don'ald P. Irp g Lee B. Zeugin Counsel!or Long Island Lighting Company Hunton & Williams 707 East Main Street P. O. Box 1535 i
Richmond, Virginia 23212 1
DATED: November 19,1986 i
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LILCO, November 19,1986
=
C0! KE W CERTIFICATE OF SERVICE UltiM 86 NOV 3 M IN In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) w-
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f Docket No. 50-322-OL-5 anAME4 c.
I hereby certify that copies of LILCO'S RESPONSE IN SUPPORT OF FEMA'S RESPONSE TO SUFFOLK COUNTY'S MOTION FOR ORDER COMPELLING FEMA TO ANSWER INTERROGATORIES were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Bernard M. Bordenick, Esq.
- Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers 4350 East-West Hwy.
Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche, Esq.
Mr. Frederick J. Shon
- Kirkpatrick & Lockhart Atomic Safety and Licensing Eighth Floor Board 1900 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036 East-West Towers, Rm. 430 4350 East-West Hwy.
Fabian G. Palomino, Esq.
- Bethesda, MD 20814 Richard J. Zahnleuter, Esq.
Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.
Washington, D.C. 20555 Mary Gundrum, Esq.
' Assistant Attorney General Atomic Safety and Licensing 120 Broadway Appeal Board Panel Third Floor, Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555 i
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J s Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.
Stephen B. Latham, Esq.
- Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second 9treet H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 A
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tsb B. Zeu g
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 19,1986
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