ML20214Q521
| ML20214Q521 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/01/1986 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1730 OL-5, NUDOCS 8612050185 | |
| Download: ML20214Q521 (19) | |
Text
Ud LILCO, December 1,1986 s
DOCKETED USHRC UNITED STATES OF AMERICA 86 DEC -4 MI ;47 NUCLEAR REGULATORY COMMISSION
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CFFL ' r 20 DOCu ...:
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Before the Atomic Safety and Licensing Board In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR ORDER COMPELLING FEMA TO PRODUCE WITNESSES FOR DEPOSITION, TO PERMIT WITNESSES TO RESPOND TO DEPOSITION QUESTIONS, AND TO PRODUCE DOCUMENTS On November 18, 1986, Suffolk County, the State of New York, and the Town of Southampton ("Intervenors") petitioned the Board for an Order Compelling FEMA to Produce Witnesses for Deposition, to Permit Witnesses to Respond to Deposition Ques-tions, and to Produce Documents (hereinaf ter cited as "Intervenors' Motion"). LILCO responds here in support of FEMA's opposition to the Intervenors' Motion.
L Introduction In their motion to compel, the Intervenors request that the Board order FEMA to produce various unspecified documents and to produce for deposition all of the Regional Assistance Committee ("RAC") members and the RAC advisors involved in the evalua-tion of the Shoreham Exercise.1/ The Intervenors hope not only to question these 1/ At the time of the Exercise, the Region II RAC members included: the chairman Roger Kowieski; Herbert -Fish, an employee of the Department of Energyt Cheryl (footnote continued)
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individuals about their factual observations on the day of the Exercise but also to probe into the deliberations involved in developing the Exercise and most significantly in drawing their conclusions as to the success of the Exercise. Such a broad scope of dis-covery goes f ar beyond the legitimate scope of the Intervenors' admitted contentions.
It is neither supported by the caselaw nor compelled by the circumstances of this pro-ceeding, and should not be permitted.
II. FEMA Witnesses and Documents are Protected Under the Deliberative Process Privilege As the courts have recognized for years, the process by which governmental bodies make their decisions is entitled to protection. Thus, a properly supported claim by FEMA that this Board's protection is essential to the integrity of its decision-making, process for reviewing and evaluating radiological emergency response plans is entitled to recognition by this Board. Given such a showing by FEMA, LILCO believes that In-tervenors' motion should be denied in its entirety. If this Board should decide to grant-
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the Intervenors' Motion in any regard, LILCO believes it should follow three principles.
First, the scope of the depositions should be specifically limited to the factual observa-tions of the RAC members and advisors on the day of the Exercise.E S econd,if the In-tervenors are granted the right to depose the witnesses, they should only be deposed as (footnote continued)
Malina, an employee of the U.S. Department of Agriculture: Ronald Bernacki, an em-playee of the Food and Drug Administration; and Paul Giardina, an employee of the U.S.
Environmental Protection Agency. Two FEMA Contractors served as advisors to RAC:
Thomas E. Baldwin, an employee of Argonne National Laboratory, and Joseph H. Keller, an employee of Westinghouse Idaho Nuclear Co.
2/ LILCO takes no position on any limitations FEMA would impose with respect to depositions limited to the day of the exercise.
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i y s a panel as was done previously with RAC members. Third, no testimony should be i
heard either concerning events leading up to the Exercise or concerning what tran-4 spired afterward in evaluating the success of the Exercise and in preparing the FEMA Report. To make any other ruling would tend, in the future, to discourage the free ex-change of ideas and information within FEMA, and inhibit full and frank discussions in 4
evaluating and making recommendations on offsite emergency planning.
A. RAC Members and Advisors Can Not Be Compelled to Respond to Questions Concerning their Activities Prior and 9d-=_=nt to the Exercise Prior to the Shoreham Exercise on February 13,1986, Roger Kowieski, the chair-man of RAC, and the RAC advisors were involved in the development of the Exercise scenario and in choosing the objectives to be met by the Exercise. Af ter the Exercise, all of the RAC members and advisors (hereinaf ter referred to collectively as "RAC wit-nesses", where appropriate) were involved in collecting the data generated from the Exercise and in evaluating this information in light of the objectives previously set for the Exercise. The Intervenors seek discovery of the content of these meetings by at-tempting to persuade the Board that the RAC witnesses merely mechanically compiled 3
the data from the Exercise and spewed forth a report'without involving any thought process. It is clear, however, that the FEMA Report and the Exercise scenario and ob-jectives are not simply a collation or compilation of individual views. Rather, they are the result of an extended collegial process in which the individual comments of the
- RAC members and advisors on matters within their specific areas of expertise, as well l.
! as their more general views, are submitted for review by other participants. These comments and views both shape, and are shaped by, those of the other members through comment and discussion. In the process, internal policy choices are made so 1
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that all emergency planning exercises are consistent as to the criteria tested and the results expected.
- 1. The Deliberation of RAC Witnesses Resulting in Findings and Determinations Represent Policy Decisions Protected from Discovery Two requirements must be met before a document can be protected under the executive or deliberative process privilege. First, the document must be pre-decisional. "The privilege protects only communications between subordinate and superiors that are actually antecedent to the adoption of an agency policy." Jordan v.
United States Department of Justice, 591 F.2d 753, 774 (D.C. Cir.1978) (emphasis in original). Second, "the communication must be ' deliberative,' that is, it must actually be related to the process by which policies are formulated." Id. Intervenors argue that ,
the deliberations of the various RAC witnesses in developing the scenario and objec-tives and in evaluating the success of the Exercise are not protected by the deliberative process privilege because the RAC witnesses "made no ' policy', nor were they involved in any policy-related decision making process." (Intervenors' Motion at 46 (emphasis in original)). Apparently, the Intervenors believe that for the decision-making process to be protected, the result must be some type of agency regulation or rule. Suffolk Coun-ty, however, has already made and lost this argument in an earlier decision in this case.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NRC 1333 (1984). There, the County tried to claim that the RAC reviewers' " comments" or
" notes" or "draf ts" of the RAC report merely contained the technical findings of the RAC members. (Suffolk County Brief in Opposition to FEMA's Appeal of the May 18 ASLB Order Compelling Production of Documents by FEMA, dated June 1,1984, at 16.)
The Appeal Board determined to the contrary, however, "that the decisional process by
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wnich FEMA arrive [d] at its findings and conclusions" was " policy" protected under
- the deliberative process privilege. As the Board noted:
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[1]he Licensing Board found that FEMA had adequately dem-onstrated that the privilege is properly invoked in this case.
l i We agree. Suffolk County claims that the privilege does not apply because the documents contain technical findings that have nothing to do with FEMA policymaking. The privilege is not limited to policymaking, however. Rather, it may. attach '
to "the deliberative process that precedes most decisions of
, government agencies."
Long Island Lighting Co.19 NRC at 1341, citing Russell v. Department of the Air l Force,682 F.2d 1045,1047 (D. C. Cir.1982). In the 1984 decision, the documents pro-i tected concerned RAC's review of' the LILCO Transition Plan. Similarly, in this case, the information sought is testimony concerning RAC's review of the Exercise and the .
4 deliberations that transpiced during the development of the Exercise scenario and the l selection of the objectives to be tested. Both situations evoke the same conclusion that
- such decision-making does concern " policy".
Other cases also demonstrate that " policy'" is not' given as narrow a definition as i
i bestowed upon it by the Intervenors. In Mead Data Central, Inc. v. United States l
Department of the Air Force,575 F.2d 932 (D.C. Cir.1978), for example, the court re-fused to compel disclosure of documents concerning the lease of a computer system.
There, Mead had sought access to Air Force documents concerning.the rejection of its l
proposal for the system and concerning negotiations with a competitor. The court de-termined that the material withheld - cost comparisons, feasibility opinions, and data as to how agency personnel arrived at these comparisons and opinions - was " policy de-liberative." Id. at 934. According to the court, the data were not raw f acts "but in-l stead serve [d] primarily to reveal the 'evaluative'. process by which different members
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of the decision-making chain arrive at their conclusions - and what those predecisional conclusions are." Id. at 935.
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not have been shielded from discovery. The Mead court addressed this contention, how-ever, stating that while "the end product of these Air Force deliberations on the
[ Mead] proposal is not a ' broad policy' decision, that deliberation is nonetheless a type of decisional process" protected under the deliberative process privilege Id.
Similarly, in Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir.1980), the court denied discovery of Department of Justice questionnaires completed by United States Senators concerning federal judicial appointments. The agency " policy" con-cerned there was "the (United States) Attorney General's evaluation of selection pro-cesses and transmittal of his own recommendation to the President. . . ." Ld. at 791.
Such a recommendation hardly satisfies the Intervenor's narrow definition of " policy".
- I In another decision, the District of Columbia Court of Appeals in Washington Research Project. Inc. v. Department of Health, Education and Welfare,504 F.2d 238 (D.C. Cir.
- 1974), cert. denied, 421 U.S. 963 (1975) also protected from production documents con-cerning the award of research projects by the NationalInstitute of Mental Health. See also Pies v. United States Internal Revenue Service,668 F.2d 1350 (D.C. Cir.1981) (Pro-posed IRS regulations protected even though they never received final approval); Burke
- Energy Corp. v. Department of Energy, 583 F. Supp. 507 (D. Kan.1984) (DOE docu-ments relating to an audit of a company and to the settlement and consent order result-ing from the audit protected).
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None of these cases involve " traditional policy making" in the narrow context used by the Intervenors. No regulations were promulgated or laws passed as a result of the agencies' deliberations. Each of the agencies, however, gathered information, eval-uated this information in a give-and-take situation and made findings and
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recommendations as the RAC witnesses did in the present case. This type of policy-making activity has been repeatedly protected from discovery by the delibera-tive process privilege snd should also be protected here.
- 2. The Findings, Recommendations And Opinions of RAC Witnesses Am Deliberative Roger Kowelski, the chairman of RAC, and the two RAC advisors planned the Exercise scenario and selected the particular objectives to be teste6 by the Exercise.
l Each of these individuals brought his or her own ideas and expertise to the planning ses-sions. Similarly, in evaluating the success of the Exercise, each RAC witness did the same. While the exact substance of what transpired is unknown, presumably the delib-erations here are very similar to those described by Roger Kowleskiin his May 21,1984, Affidavit in support of FEMA's appeal of an order concerning the deliberativo process privilege in an earlier decision in this case, See Memorandum in Support of FEMA's Ap-peal of an Order of the Atomic Safety and Licensing Board and Request for a Stay, May 21,1984 (Attachment, Affidavit of Roger Kowieski). There, Mr. Kowieski stated that, in evaluating the LILCO Transition Plan, "various points of views were analyzed and conclusions and agreements reached" by the RAC members. In addition,"[t]he validity of each comment was discussed and necessary changes were made to assure that the
, final document reflected factual information." In all probability, the deliberations here involved a similar process of harmonizing the differen '. aws and opinions on what was important in testing and in evaluating the LILCO ' em$ : m Plan. In the end, a consen-sus was reached, and the other ideas and opinions were filtered out in the process.EI 3/ The RAC members and advisors are distinguishable from other individuals who serve as evaluators on the day of the Exercise because those evaluators were for the (footnote continued) i
I Although the Intervenors seek to depose the RAC witnesses on all of these mat-ters, they nonetheless contend that they have only requested production of purely fac-tualinformation. In their brief, however, Intervenors state their request to include what data were used in reaching the conclusions in the FEMA Report, and how they were used; what was intended in creating and modifying Exercise objectives; what standards or criteria were used in determining whether Exercise objectives were satisfied and how evaluators, or those who wrote the FEMA Report, applied those standards or criteria to the events which occurred on February 13.
(Intervenors' Motion at 40).
In requesting information on how the data was used, the Intervenors hope to learn how the individual RAC witnesses selected or deselected in their analysis certain data from the Exercise and why they considered one fact more important than another.
- This type of information is and has been protected by the courts. In Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir.1974), for example, the court applied the deliber-ative process privilege to summaries made by agency staff attorneys of evidence devel-oped at a public hearing.M The court held that the summaries were exempt as an inte-gral part of the deliberation process because the staff attorneys "were making an evaluation of the relative significance of the facts recited in the record"- a selection which required some kind of judgment even if the evidence was cited verbatim. I_d. at (footnote continued) most part only involved in making observations on the day of the Exercise and not in the synthesizing of these observations into the final FEMA Report. These evaluators were involved to a limited degree in reviewing the FEMA Report but only to make sure that the Report reflected their experiences on the day of the Exercise. l 4/ The court also applied the attorney work product doctrine to the summaries. l Under the court's discussion of the deliberative process privilege, however, the fact j that the authors of the summaries are attorneys was of no consequence.
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- 68. The court in Washington Research Project. Inc. v. Department of Health. Education and Welfare, 504 F.2d 238 (D.C. Cir.1974), cert, denied, 421 U.S. 963 (1975) followed the court's reasoning in Montrose to reach a similar result. There, the plaintiff. re-quested that the court compel production of certain documents grant applications, site visit reports prepared by outside consultants and summary statements prepared by agency staff members - concerning the award of research projects. The court deter-mined that these documents were "evaluative" even though several were only "ab-stracts of other information." M.at 250. The court reasoned that the " necessity to se-lect and emphasize certain facts at the expense of others" required a " level of specificity that reflects [the author's] personal perspective on the material (site visit reports] being summarized." Id. at 250-51. In holding the documents exempt from dis '
closure, the court stated:
The point is simply that choices are and must be made by' someone or some group with a unique perspective, and deci-sions may be based on them.
M. at 251.
As noted above, the Intervenors also seek information on "what was intended in creating and modifying Exercise objectives. . . ." (Intervenors' Motion' at 40). The intent of Roger Kowieski and the RAC advisors in creating and modifying the objec-tives also goes directly to the deliberative process and the give-and-take involved in fi-nalizing the objectives. It concerns their ideas, opinions and suggestions,' all of which -
were not included in the Exercise objectives. Therefore, the " intent" of the RAC wit-nesses in this respect must also be protected from discovery.
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! Next, how the RAC members and advisors applied the " standards or criteria" in i-evaluating whether the Exercise objectives had been met is in reality asking how they l
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.i ,b reached their conclusions about the success of the Exercise. The Intervenors are not requesting that they be given a list of standards or a checklist of factual matters.
Rather, the Intervenors are trying to delve into the very heart of the decision-making process by seeking information on what actually transpired among the various RAC witnesses in reaching a consensus as to their findings. Such an inquiry also cannot be permitted.
Another point raised by the Intervenors begs clarification. While it is true, as the Intervenors assert, that purely f actual material is not protected from disclosure, factual segments are protected from disclosure as not being purely f actual if the manner of selecting or presenting those facts would reveal the deliberative process, or if the f acts are
" inextricably intertwined" with the policy-making process.
Ryan v. Department of Justice,617 F.2d 781,790 (D.C. Cir.1980) citing Environmental Protection Agency v. Mink, 410 U.S. 73, 92 (1973), and Soucie v. David,'448 F.2d 1067 (D.C. Cir.1971).
Naturally, the RAC used f actual material in making its findings and conclusions and in developing the Exercise scenario. The LILCO Transition Plan is a fact. The NRC rules and regulations are facts. What occurred on the day of the Exercise is a fact. The FEMA Report itself is a fact. The Intervenors, however, already have access to all of these facts especially if the Board permits discovery of the RAC witnesses as to their observations on the day of the Exercise. Therefore, even if it were possible, it is not necessry to try to segregate out the factual material in this case. Based upon these facts, the Intervenors must make their case. The deliberations surrounding these
- facts as to what they meant to each of the individual RAC witnesses based upon their individual opinions and expertise is not f actual and can not be subjected to discovery.
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- 3. ALAB-773 Directly Support FEMA's Right to Protection Under the Deliberative Process Privilege While the Appeal Board's decision in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NRC 1333 (1984) addressed the production of doc-uments rather than witnesses, the basic premise upon which the Board upheld FEMA's deliberative process privilege in that decision is equally applicable here. There, the Board upheld the unwavering principle that " governmental documents reflecting advis-ory opinions, recommendations, and deliberations comprising part of a process by which governmerital decisions and policies are formulated" are protected from public disclo-sure. Id. at 1339. As the Board refused discovery of such pre-decisional, deliberative documents in that case, so should the Board deny discovery of the very same type of in-
- formation in this case. To permit the Intervenors to depose RAC witnesses on their opinions and recommendations, would merely allow the Intervenors to do so by oral dis-covery what they could not do through document production.
Intervenors claim that they are entitled to depose the RAC witnesses for mat-ters before and af ter the Exercise because the Appeal Board in the 1984 decision stated that "the County is entitled to probe the FEMA findings, explore their bases, assess their accuracy, and determine what reliance should be placed on them." Id. at 1343.
This portion of ALAB-773 does not, however, as Intervenors would agree,' completely expose the internal decision-making process of RAC; rather, this statement permits the Intervenors to probe, explore and assess the success of the Exercise through their own analysis of the facts in light of RAC's findings and determinations as set forth in the FEMA Report. The reality of this statement is apparent in the Bo cd's own character-ization of the matter in the 1984 decision:
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It is also important to place in perspective the significance of the FEMA findings: First of all, it is the ultimate institutional findings and determinations by FEMA, not the predecisional opinion of various members of the RAC, that are centrally important.
Id. at 1346. Contrary to what the Intervenors hope to pursuade the Board, the 1984 LILCO decision does not permit broader discovery than that pefmitted in the cases pre-viously cited in this brief. ALAB-773 supports the protection of the policy-making pro-cess by which the RAC witnesses deliberated upon the Exercise scenario and its results.
B. FEMA Documents Requested For Production Are Deliberative and Protected From Discovery In addition, FEMA is protected under the same principles expressed above from production of the " summaries of factual observations and evaluations which were pre-
- pared subsequent to the exercise." (Intervenors' Motion at 25.) Such documents go be-yond being " purely factual", rather reflecting the personal opinions of the writer and the deliberative process by which the success of the Exercise was evaluated.
III. The Substantial Harm Caused by Discovery of RAC's Deliberations Outweighs the Intervenors' Need to Know The degree of harm expected to be suffered from compelled disclosure is to be weighed against the asserted need of the Internvenors for the privilege information.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NCR 1333, 1343 (1984). The mere assertion of a chilling effect upon the policy-making pro-cess cannot rebut all claims of necessity of disclosure. In the present case, however, FEMA's assertions of harm are not mere claims.
A. Disclosure Would Severely Harm FEMA One of the purposes of the deliberative process privilege is "to assure that subor-dinates within an agency will feel free to provide the decisionmaker with their uninhib-ited opinions and recommendations without fear of later being subject to public ridicule or criticism . . . ." Coastal States Gas Corp. L Department of Energy, 617 F.2d 854, 866 (D.C. Cir.1980). The process by which the RAC members and advisors make policy decisions concerning the Exercise involves significant give-and-take among the RAC witnesses. Honest and frank communication is absolutely necessary. Those involved need to be free of any fear of any adverse reactions to their comments and opinions or they may lose all incentive to participate in offsite emergency planning. It is very pos-sible that disclosure could severely affect the integrity and candor of the collective
- RAC deliberative process and disrupt the collegial atmosphere necessary in these delib-erations. As the court in Coastal States noted:
" Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."
Ld. Quoting United States L Nixon, 418 U.S. 683, 705 (1974). Therefore, it is crucial that FEMA not be required to bare the intimate details of its decision-making process in this matter. Indeed the Board, in the 1984 LILCO decision, gave a high degree of deference to Roger Kowieski's statement on this very matter where he commented that by releasing the RAC individual comments which are predecisional, my ability to operate the Regional Assistance Committee will be (severely weakened]. The RAC members, in fact, may 'ce very reluctant to provide me with written material which could be disclosed later at the ASLB hearing or other proceedings. Some of these comments may be sensi-tive in nature and their disclosure could have a negative im-pact on our relationship with the states, and local govern-ments and utilities.
M. at 1347. Surely, no lesser concern in preserving the confidentiality and integrity of RAC's decision-making process is present here.
Another purpose of the privilege is to protect against confusing the issues by.
disseminating " reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action." Coastal States Gas Corp., 617 F.2d at 866.
By airing the different positions and opinions of the RAC witnesses which did find their way into the final FEMA Report, the real issues become muddled. And, as the Board noted in its 1984 decision, "it is the ultimate institutional findings and determinations
[made] by FEMA . . . that are centrally'important." - Long Island Lighting Co.,
ALAB-773,19 NRC at 1346. Furthermore, the exploration of Roger Kowieski's and the RAC advisors' discussions in selecting the objectives to be tested and in developing the
- Exercise scenario would only cloud the real issues since they have no relevancy since there are no Contentions addressing the development of the scenario and objectives.N B. The Intervenors' Need for Disclosure is Minimal Conversely, the Intervenors' need to know the actual deliberations involved in the development of the Exercise scenario and in preparing the FEMA Report does not outweigh the substantial harm disclosure would cause FEMA.' While the Intervenors claim that their need is substantial, the showing cf necessity must be a definite one and not merely unsubstantiated charges that FEMA's need for confidentiality is deficient.
Carl Zeiss Stif tung v. V.E.B. Carl Zeiss. Jena, 40 F.R.D. 318 (D.D.C.1966) af f'd sub nom.
5/ Also, in arguing that FEMA will not be harmed by disclosure of the information they seek,.the Intervenors contend that the process would not be circumvented since -
the " technique" FEMA used in the evaluation is already known. (Intervenors' Motion at 47). Just as the Intervenors do not seek discovery of the " technique", FEMA seeks to protect something more than the mere " technique" used in preparing for and evaluating .
the Exercise, that is the internal workings and content of the deliberations.
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i Carl Zeiss Jena v. Clark, 384 F.2d 979 (D.C. Cir.), cert. denied 389 U.S. 952 (1967). In their brief, the Intervenors proclaim a public need to know the facts "given the magni-tude of the safety issue at stake." (Intervenors' Motion at 59). As previously discussed, however, the facts upon which RAC and FEMA have made their conclusions are already available to the Intervenors. If the Board grants the Intervenors the right to depose the RAC witnesses as to their observations on the day of the Exercise, no more can be asked of FEMA.
In assessing assertions of need, both the availability of other sources of informa-tion and the importance of the information are recognized as relevant by both the Commission's licensing boards and federal courts. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,1169-65 (1982). As mentioned
- above, however, the Intervenors already possess the factual material they need to as-sess the feasibility of the LILCO Plan and to evaluate the Exercise. The overwhelming need of FEMA to protect and maintain the integrity of the decision-making process by which emergency planning is evaluated is substantially greater than the need of the In-tervenors to know the intimate details of RAC's deliberations. Therefore, the Interve-nors should not be permitted to inquire into the deliberations of the RAC witnesses prior and subsequent to the Exercise.
IV. FEMA Has Not Walved its Right to Assert the Privilege In their brief, the Intervenors contend that FEMA has waived its right to assert its executive privilege in that " FEMA has already laid bare its evaluation process."
They contend that FEMA's position stands the privilege "on its head" because it has "al-ready disclosed how the agency processed the information . . . while insisting upon keeping secret the raw data which was the input to that process." (Intervenors' Motion at 55 (emphasis in original)).
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Throughout their brief, the Intervenors have portrayed the process by which RAC prepared the Exercise scenario and objectives and the FEMA Report in an ex-tremely simplified manner. They have characterized the RAC's deliberative process as very mechanical and lacking in any thought. And to this end, they have tried to con-Vince the Board that they only seek the raw data upon which FEMA's conclusions are based and that FEMA, in objecting to the depositions, has improperly withheld these facts. Such a misrepresentation itself stands the real issue "on its head." Disclosure of the process's mechanics does not waive FEMA's right to protect the confidential, inti-mate discourse that preceded RAC's findings and conclusions and the development of the Exercise scenario.
Equally incomprehensible is the Intervenors' claim that the FEMA Report itself
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" constitutes a waiver of any expectation of confidentiality . . . ." (Intervenors' Motion at 55-56). To claim that a final report waives all protection for prior deliberations flies in the face of the deliberative process privilege. If such a result were the case, the privilege could not exist.
V. Conclusion i
For the reasons stated above, LILCO requests that the Licensing Board deny the i
Intervenors' Motion for Order Compelling FEMA to Produce Witnesses for Deposition,
! to Permit Witnesses to Respond to Deposition Question, and to Produce Documents at least as to those matters reflecting the deliberative process prior and subsequent to the .
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Exercise on February 13. 1986. LILCO also requests that within any scope of discovery permitted by the Board, participants in the RAC process be permitted to be deposed
- only collectively. The potential harm to FEMA from exposure of the intimate details of i
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.t7-the RAC discussions in planning the Exercise and in evaluating the success of the Exer-cise outweighs the Intervenors' need to know as they already have access to all the fac-tual material necessary to adequately prepare their case.
Respectfully submitted, Donald P. Irwin Lee B. Zeugin -
Mary Jo Leugers Counsel for Long Island Lighting Company Hunton & Williams 707 East Main street P. O. Box 1535
- Richmond, Virginia 23212 DATED: December 1,1986 L
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i LILCO, December 1,1986
.. 3 CERTIFICATE OF SERVICE UCLKEIlD ,
- USNPC I
In the Matter of gg. gg .4 gjj:47 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 Cff!LE u it AIC 00ChtImGA W ICf.
i BRAhCH
$ I hereby certify-that copies of LILCO'S RESPONSE TO SUFFOLK COUNTY,
- STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR ORDER COM-t PELLING FEMA TO PRODUCE WITNESSES FOR DEPOSITION,'TO PERMIT WITNESSES
! TO RESPOND TO DEPOSITION QUESTIONS, AND TO PRODUCE DOCUMENTS were
- served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
4 John H. Frye, III, Chairman * . Atomic Safety and Licensing
[ Atoraic Safety and Licensing Board Panel i Board U.S. Nuclear Regulatory Commission l 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.
i Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mallroom)
! U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers l 4350 East-West Hwy. Herbert H. Brown, Esq. *
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
1 Karla J. Letsche, Esq.
! Mr. Frederick J. Shon
- Kirkpatrick & Lockhart
! Atomic Safety and Licensing Eighth Floor l 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 l 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.
I Assistant Attorney General
- Atomic Safety and Licensing 120 Broadway .
- . Appeal Board Panel Third Floor, Room 3-116 e U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555 J
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n 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 Street 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 Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 1,1986
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