ML20215D639

Response Opposing FEMA 861201 Motion for Protective Order Based on Assertion of Incorrect Facts Re 860213 Exercise & Failure to Address Crucial Rulings.Related Documentation Encl.Certificate of Svc Encl

ML20215D639
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/11/1986
From:	Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1881 OL-5, NUDOCS 8612160431
Download: ML20215D639 (32)

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December Yb#3[I986 UNITED STATES OF AMERICA '86 DEC 15 All :55 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board r l, A, ,

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In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON RESPONSE TO FEMA'S DECEMBER 1, 1986 MOTION FOR A PROTECTIVE ORDER On December 1, 1986, the Federal Emergency Management Agency

(" FEMA") filed " FEMA'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 Question, and to Produce Documents and Motion for a Protective Order" (hereafter, " FEMA Motion"), asking the Board to deny the relief requested by the Governments in the November 18, 1986 Suffolk County, State of New York, and Town of Southampton Motion for Order Compelling FEMA to Produce Witnesses for Deposi-tion, to Permit Witnesses to Respond to Deposition Question, and to Produce Documents (hereafter, " Governments' Motion"). In its Motion, FEMA requested, among other things, that the Board:

1) refuse to issue subpoenas for depositions to any persons not 8612160431 861211 hDR ADOCK 05000322 PDR j)$d 25

}

designated by FEMA as witnesses; 2) deny any further production of documents by FEMA, including those identified in the Index attached to the Motion; 3) rule that the Governments cannot depose any designated or non-designated witnesses with respect to the " pre- or post-Exercise period"; and 4) deny the Governments' request that Roger Kowieski be produced for deposition prior to the Board's ruling on FEMA's Motion for Reconsideration of the October 3, 1986 Prehearing Conference Order.1 LILCO filed a response to the Governments' Motion which supported FEMA's h opposition. Egg LILCO's Response to Suffolk County, State of New York and Town of Soathampton Motion for Order Compelling FEMA to Produce Witnesses for Deposition, to Permit witnesses to Respond to Deposition Questions, and to Produce Documents, dated December 1, 1986 (hereafter, "LILCO Response").

The majority of the substantive matters discussed in the FEMA Motion were addressed in depth in the Governments' Motion.

In the interest of brevity, they will not be repeated here. We discuss below, however, certain representations, arguments and requests made by FEMA which require response, and demonstrate that the FEMA Motion should be denied, and that of the Governments granted.

1 Based on events that transpired at the December 4, 1986 Conference of Counsel, this last request appears to be moot, since the Board will rule on FEMA's Motion for Reconsideration of the October 3, 1986 Prehearing Conference Order before any i further depositions are taken by the parties.

I

I. FEMA's Motion Makes No Mention of the UCE Case and Therefore Never Comes to Grips with the Issue Presented in this Proceedina The FEMA Motion never once mentions Union of Concerned Scientists v. Nuclear Reaulatory Commission, 735 F.2d 1437 (D.C.

Cir. 1984), cert. denied, 105 S. Ct. 815 (1985) (hereafter "qqS"), or the Margulies Board's discussion of that case in its Prehearing Conference Order, which are addressed at length in the Governments' Motion. As stated therein, however, that case, and the Board's correct application of its holding to this proceeding, are central to, and largely dispositive of, the issues presented in the Governments' Motion. FEMA's failure even to address these crucial rulings alone requires \that tb.e FEMA Motion-be denied.2 II. FEMA's Assertions About the " Facts" Concerning the February 13, 1986 Exercise are Wrona In the " Introduction" to its Motion, FEMA includes a convoluted discussion about the " facts" concerning the February 13 Exercise. Sag FEMA Motion at 2-4. While FEMA's point in this discussion is not altogether clear, several statements in that section require a response or comment.

First, FEMA asserts:

. that if' FEMA's participation is only as a fact witness . . . then the primary burden of dis-covery by the County to determine the facts of what happened or didn't happen during the Exercise lies against LILCO as the organiza-tion that conducted the Exercise.

2 LILCO's Response also fails to address the controlling authority of QCE, making that Response similarly defective.

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FEMA Motion at 2. FEMA goes on to say that "what evaluators saw or didn't see during the Exercise may be material to the Board in its attenpts to have determined what happened or didn't happen during the day of the Exercise," but, then says that " FEMA's discussion of what happened the day of the Exercise is reflected in its (FEMA Report]. The facts upon which FEMA relied are stated in the Report." Id. These FEMA assertions are simply incorrect. Thus, during even the limited deposition discovery that has taken place to date, the Governments have learned that several statements made in the FEMA Report, which on their face appear to represent " facts" about the Exercise, are not at all what they seem.

For example, the following passage appears at page 43 of the FEMA Report:

A sample of resources necessary to effect an early dismissal of schools or an orderly evacuation of schools was demonstrated through the simulated dispatch of seventeen (17) buses to the Shoreham-Wading River High School and the release of students for transportation back to their homes (FIELD 15 and 16). The dismissal actions were implemented by the Superintendent of the school district. The bus company, which is under contract to the school district and available at any time, was notified and dispatched two (2) buses to high school. Drivers were given detailed maps of routes to follow and instructions to report back to the bus depot upon completion of their routes. A sufficient number of buses and drivers are available for the transportation responsibilities required during an evacuation of schools.

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Based on this passage, the following " facts" could be assumed.

During the Exercise there occurred, and a FEMA evaluator ob--

served: (1) a simulated dispatch of 17 buses to the Shoreham-Wading River High School; (2) students being released and trans-ported to their homes; (3) an actual dismissal being implemented; (4) notification of the bus company; (5) the dispatch and appearance of two buses at the high school; (6) detailed maps given to bus drivers and the driving to completion of school evacuation routes; and (7) demonstration that a sufficient number of buses and drivers would actually be available to accomplish an evacuation of schools. In fact, however, it was learned upon deposit.g the evaluator who was supposed to have performed these activities (Mr. Gasper), that the FEMA evaluator observed none of these thinas. He saw no dispatch, simulated or otherwise, of buses to the high school; he saw no dismissals or other actions involving students; he missed the two buses he was supposed to observe, and ride on, from the high school to a reception center; he saw no maps, spoke to no bus drivers, and saw no evacuation j routes being driven; and, he did not verify the actual availability of the number of buses and drivers necessary to effect an evacuation of all schools, even in the Shoreham-Wading River District. In fact, the FEMA evaluator did not even know how many buses were necessary to evacuate just the high school.

During the Exercise he sat for four hours in the high school, spoke to a Superintendent and principal, and spoke to a bus dispatcher. Deposition of William Gasper, Tar. 25-32; 67-74; 87-90.

Similarly, during the deposition of the evaluator who had sole responsibility for determining whether certain objectives were met at the Patchogue Staging Area (Mr. Tanzman), the Governments learned that that evaluator had left the facility at 1:30 p.m., and that no other evaluator replaced him or filled out critique forms for the Patchogue Staging Area from that time until the end of the exercise at approximately 4:30. Deposition of Edward Tanzman, Tr. 171-172. As these examples illustrate, the Government can only determine the bases of the statements made in the FEMA Report, including what was observed by evaluators during the Exercise, by questioning the evaluators who were present at the Exercise.

Furthermore, the documents generated by LERO players during the Exercise are of limited utility in reconstructing actual events during the Exercise, as the LERO players frequently failed to distinguish between real and simulated activities. This failure has apparently confused LILCO and FEMA in addition to the Governments.3 3 For example, LILCO has admitted that the extent of U.S.

Coast Guard participation in the Exercise was limited to the receipt of telephone calls from LERO. See LILCO's Response to Suffolk County, State of New York and the Town of Southampton's First Request for Admissions, November 17, 1986, at 1. FEMA, by contrast, has stated that:

The FEMA observer during the exercise directly observed communications between LERO EOC and the Coast Guard both by telephone and by radio. Additionally, during the exercise, the FEMA observer verified, with the Coast Guard that the Coast Guard took or simulated pro-tective actions for the public notification in the water part of the EPZ. The Coast Guard simulated the establishing of a Maritime Safety Zone for the water part of the EPZ and (footnote continued)

Thus, FEMA's apparent argument that LILCO alone possesses the only relevant information about what happened during the  !

Exercise (e.a., " FEMA requests if the exercise and not the FEMA PEA is what is at issue in this proceeding, that the Board issue an order clearly determining that the burden of discovery l 1

concerning what happened on the day of the exercise falls against  ;

LILCO" (FEMA Motion at 3-4)), ignores the fact that not only what actually occurred at the Exercise, but what FEMA observed and evaluated is at issue in this proceeding. Egg, e.a., Contentions (footnote continued from previous page) simulated making emergency radio broadcasts to all shipping on the distress frequencies. The Coast Guard also dispatched a patrol boat to the water part of the EPZ for access control at 1020. The boat was on scene 1127, reported the area clear at 1151 and returned to New Haven at 1735.

FEMA's Response to Suffolk County, State of New York, and Town of Southampton's First Request for Admissions and Second Set of Interrogatories Directed to FEMA, November 19, 1986, at 4. If LILCO and FEMA, with all the evidence at their disposal, cannot determine whether or not a boat was dispatched to notify persons on the water portion of the EPZ, it is unreasonable to suggest that all the Exercise facts are known and the Governments need no further discovery.

Similar confusion exists as to the extent of participation in the Exercise by nursing homes. FEMA has stated that "[n]o officials from nursing homes or adult homes located in the Shoreham EPZ participated in the Exercise." FEMA Response to Admissions, at 12. LILCO, by contrast, has stated that officials

or personnel from three nursing homes participated, without elaborating on the nature of their participaticn. LILCO Response to Admissions, at 6. FEMA admitted that it did not observe or evaluate notification of the ambulatory deaf (FEMA Response to Admissions, p. 16), yet LILCO has stated that this activity was demonstrated. LILCO Response to Admissions, at 11. These are just three instances out of many where LILCO's and FEMA's versions of, and observations about, Exercise " facts" -- let alone their respective interpretations -- are inconsistent. In basic fairness, the Governments are entitled to discover the facts known by both FEMA and LILCO before proceeding to trial in this action. The entire point of the adversary system is that,

Ex 21, Ex 36, Ex 40, Ex 41, Ex 47, and Ex 49. These Contentions, in addition to Contentions Ex 15 and 16, take issue, in whole or in part, with determinations made by FEMA, purportedly based on the observations by the Exercise evaluators. Obviously, the Governments will be in no position to assess or rebut FEMA's evaluation of the Exercise results until the facts concerning that evaluation, how it was made, and its actual scope, are made available to the Governments. Under the principles enunciated in Egg as well as under basic notions of fairness and due process, the Governments are entitled to a meaningful opportunity to litigate the contents of the FEMA Report, the bases for the conclusions in it, and their significanca with respect to this Board's licensing decision. This necessarily requires that the Governments be permitted to ascertain and probe the factual bases of the Report.

At some points in its Motion, FEMA appears to acknowledge the importance of FEMA's exercise observations.4 However, the position taken by FEMA in refusing to respond to discovery requests, and refusing to permit witnesses or evaluators to be deposed, belies that acknowledgment. Furthermore, FEMA's repeated reference to "the burden of discovery" " falling" on 4 gge, e.a., FEMA Motion at 2 ("what evaluators saw or didn't k see during the exercise may be material to the Board in its

[ attempts to determine what happened or didn't happen during the day of the exercise"); 3 ("The Intervenors have the full regalia of the discovery process to determine that the version of the facts relied upon by FEMA was deficient . . . . Only the most rigorous discovery effort by LILCO and Intervenors . . . can give the Board the security of knowing whether or not FEMA's published facts are correct. . . . [s]ome FEMA witness or document might show that FEMA failed to reflect in its report some fact or that FEMA disregarded some material fact . . . . ").

either LILCO 21 FEMA, as if only gag party has an obligation to respond to discovery requests, is unexplained, and without any basis.

III. The Governments are Entitled to Inquire Into Events Occurrina Before and After the Exercise FEMA asserts that the Governments should be precluded from inquiring into pre- and post-Exercise events and occurrences.

FEMA Motion at 5.5 This suggestion is without basis. It also ignores the nature of the Governments' contentions, the scope of permissible discovery under NRC rules, and the realities of the informational advantage enjoyed by LILCO in these proceedings.

Aside from the allegations in Contentions Ex 15 and 16, the Governments have alleged as bases for many of their contentions that LILCO's responses to scenario events were inadequate and/or that FEMA's conclusions as to whether Exercise objectives were met were either incorrect or based on insufficient data or inaccurate assumptions. Egg, e.a., Contentions EX 21', 22, 36, 40, 41, 47, 49, and 50. Any meaningful litigation of the issues raised by these Contentions requires that the Governments be permitted to inquire into the provenance of the scenario and objectives, what was intended to be demonstrated during the Exercise, what was intended to constitute satisfaction of the objectives, what responses to the scenario were expected or considered to be appropriate, and what facts, revealed during the Exercise, FEMA relied upon in reaching the conclusions contained l

l 5 LILCO makes the same argument at pages 2-3 of the LILCO Response. l 1

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in the FEMA Report. To limit the Governments' inquiry to just what happened during the 10 or 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> of the Exercise -- as FEMA and LILCO have suggested -- is an absurd proposition. To do so would also completely abrogate the Governments' rights under UCE to challenge the results of the Exercise. Clearly, what occurred at the Exercise is meaningless in a vacuum. It must be viewed in the context of what was meant to occur, what should have occurred, and what standards, criteria, assumptions, or uhderstandingswereusedbyevaluatorsindeterminingwhether objectives were met and responses were adequate. FEMA's conclusions about the Exercise and its results -- which the Governments are challenging in this proceeding -- are meaningless unless the facts and criteria which underlie those conclusions are disclosed.

The argument that the Governments should not be permitted to inquire into the development of the objectives and scenario during discovery is similarly without basis in law or logic.

Documents already released to the Governments, as well as information obtained during the deposition of FEMA evaluator Edward Tanzman, indicate that LILCO participated with FEMA in numerous pre-exercise meetings, discussions and drills related to development of the scenario and the objectives. Egg Transcript from the Deposition of Edward Tanzman, which is being provided to

. the Board with the Suffolk County, State of New York, and Town of Southampton Response to "LILCO's Motion for Protective Order Governing Intervenors' Questioning of Witnesses and Request for Expedited Board Ruling." Indeed, in its December 2 Protective t

i Order Motion, LILCO even asserts that it acted as a FEMA consultant prior to the Exercise. Thus,-LILCO was privy to most, if.not all, of FEMA's activities and the " deliberations," if any, concerning the development of the scenario and objectives.

. Indeed, LILCO proposed the exercise objectives, and was responsible for many subsequent changes in proposed objectives, and it explained to FEMA, in correspondence and during meetings, why it would or would not include particular objectives in the j

final list. There is no merit to the argument that an acency deliberative process privilege should shield from discovery by the Governments, information to which LILCO and FEMA -- the Governments' opponents in this litigation -- are already privy.

Finally, FEMA's refusal to produce documents dated before June 20, 1985 because, in FEMA's opinion, they "are simply not relevant or material" (FEMA Motion at 12), is improper and without basis. If such documents are responsive to outstanding i discovery requests, FEMA must produce them, unless it has obtained a protective order. Its pending request does not go to such documents, and therefore the Board should order FEMA to produce them.

IV. There is No Basis for Concluding that the Discovery

Requested by the Governments Would Have a Chilling Effect on the RAC Throughout its Motion, and in the Affidavit by Julius Becton 4

attached to the Motion, FEMA states that its assertion of the deliberative process privilege is "necessary to protect the deliberative process by which FEMA, with the technical assistance 1

9

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of the Regional Assistance Committee, evaluates exercises of radiological emergency response plans." Egg Becton Affidavit at 2; FEMA Motion at 16-17. FEMA off ers no evidence, or even argument or logic, to support these bald assertions.6 The Governments addressed this blanket assertion of the privilege, and its lack of basis in this case, in their original Motion.

Egg Governments' Motion at 47-50.

Furthermore, FEMA's reliance on the spectre of the RAC being

" chilled" as a ground for its assertion of privilege in this case is particularly mystifying in light of what discovery undertaken to date has revealed. The RAC apparently had very little to do with the evaluation of the Exercise, or, for that matter, with the drafting of the FEMA Report. The evaluation was done by the 38 evaluators, who put, on their exercise critique forms, their factual observations and their conclusions as to whether exercise objectives were met, not met, or not observed. The FEMA Report was drafted, and revised, by Argonne Laboratory personnel, with consultation with Argonne-employed exercise evaluators, and some input by Roger Kowieski. There has been no indication that the RAC ever engaged in any " collegial" meetings, reviews, or

" deliberations" concerning the evaluators' observations and conclusions, or concerning the report drafted by Argonne. See Tanzman Deposition Transcript 200-232.

6 In its Response, LILCO asserts that "[i]t is very possible" disclosure would affect the integrity and candor of the RAC, and then proffers an argument based on the facts of the case decided in Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333 (1984). LILCO Response at 13-15. The Governments demonstrated in their Motion that ALAB-773 is not controlling here. Sgg Governments' Motion at 50-54.

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As is discussed more fully below and in the Governments' Motion, no deliberative process privilege attaches to the ,

i information requested by the Governments, and, even if it did, s such a privilege is overcome in this litigation by the need of the Governments for the requested information, and the principles of MCE. FEMA's unsupported assertions that disclosure would have a " chilling effect" must be rejecte'd.-

V. The Legal Arguments and Precedents Relied Upon by FEMA are InaDoosite to the Facts in This Case FEMA states that, as grounds for its refusal to release any more documents to the Governments, it is "[rlelying upon the executive ' deliberative process' privilege embodied in 5 U.S.C.

S 552(b)(5)." FEMA then cites numerous cases (many already discussed in the Governments' Motion at 34-59), nearly all of-which were decided on Freedom of Information Act ("FOIA")

grounds. As the Governments pointed out in their Motion, the FOIA cases involving the deliberative process privilege provide, at best, a starting point for the analysis of the issues presented to the Board by the Covernments' discovery requests.

No FOIA case can be dispositive of the Governments motion, however, because in analyzing a FOIA request, a court is not at liberty to take into consideration the requestor's need for the ,

information sought. Thus, even assuming for the sake of argument that some of the various categories of documents FEMA seeks to withhold are " deliberative," this fact standing alone is insufficient to justify non-disclosure. The Board must further find that FEMA's interest in keeping the documents secret

outweighs the Governments' need for the information contained in them, and the public interest in disclosure. Egg Governments' Motion at 47-50, 57-59.

In its Motion, FEMA relies heavily on Mead Data Central, Inc. v. United States Deo't of the Air Force, 575 F.2d 932 (D.C.

Cir. 1978), and similar cases in which a losing bidder on a government contract has sought the disclosure of documents relevant to the contract award.7 The Mead case involved a FOIA request only. Thus, the Mead court had no occasion to weigh the agency's interest in non-disclosure against a litigant's need for the information to present his case. Furthermore, to analogize the situation presented by this case with the situation presented in Mead is to ignore completely the dispositive ECE decision, which gives the Governments the right to litigate FEMA's evaluation of the Exercise and its results. The facts presented to the Board in this case are completely distinguishable from those in Mead which involved the appropriateness of the letting of a particular government contract to one supplier in preference to another.

Furthermore, the argument that disclosure of the information the Governments have requested could possibly reveal FEMA's

" deliberative processes" by revealing what facts FEMA chose to select as important, ,and for this reason the documents requested by the Governments should not be disclosed, sgg LILCO Response at 8-10, must be rejected. The courts in the two cases cited for 7 LILCO similarly relies on Eead in its Response.

this proposition 8 went to great lengths to make clear that this rationale obtains only when all the facts, from which the drafters of the allegedly privileged document selected, are publicly known. As demonstrated above, all the facts concerning the February 13, 1986 Exercise and FEMA's observations and evaluations have H21 been made publicly known.

VI. FEMA's Claim of the Deliberative Process Privilege to Cover Evaluator Criticue Forms Is Without Basis FEMA's attempt to characterize the " Exercise Evaluator Critique Forms" as " deliberative" documents (sgg FEMA Motion at

9) is belied by the forms themselves, and by the testimony of FEMA's own witnesses. As the Governments pointed out in their Motion, the forms themselves instruct the evaluators to

" factually describe their observations." Testimony by FEMA witnesses at depositions bears out that this is, in fact, what the evaluators did. Marianne Jackson, for instance, agreed that her observations were on the forms. Although in many instances the forms actually were filled out after the Exercise, the evaluators merely used the forms to set out the details of what they had observed. Marianne Jackson Depo. Tr. at 71, 72, 121-22.

Hugh Laine described the forms he filled out as a " check-off list" and added "that check off list is pretty much a log, you know. If you go down that, you have to observe all of those things and make comments, and that's what you are doing." He l 8 Montrose Chemical Coro, v. Train, 491 F.2d 63 (D.C. Cir.

1974) and Washincton Research Proiect, Inc. v. Dept. of Health, Education and Welfare, 504 F.2d 238 (D.C. Cir. 1974), cert.

denied, 421 U.S. 963 (1975).

also agreed that the forms were "the primary records that (he]

kept of what (he] observed during the exercise." Hugh Laine Depo. Tr. at 11-12. Albert Smith similarly acknowledged the essentially factual nature of the notations on his forms, 4

describing them as containing his " conclusions based on limited observations (on) my end of what went on." Albert Smith Depo.

Tr. at 80. Christopher Saricks stated that, in filling out a form, "in the comments I tried to be as complete as possible about what I observed, and what transpired." Christopher Saricks Depo. Tr. at 131-32. Edward Tanzman also described the forms as containing his own observations: "Because to a great extent, what I saw on the day of the exercise was, and what is recorded in the critique form, is my recollection of my contemporaneous analysis of what I was seeing." Tanzman Depo. Tr. at 158.

Obviously, to the extent that the Exercise Evaluator Critique Forms contain any conclusions at all, these " conclusions" are of the low-level sort more accurately characterized as shorthand statements of fact. Egg discussion at pages 41-43 of the Governments' Motion.

And, as the Board is aware, many of the evaluators were unable to recall the specifics of what they had observed in connection with particular objective. Egg letter dated December 1, 1986 from Karla J. Letsche to ASLB and attachments thereto. Thus, without the forms, in many instances even the depositions of evaluators have not been very fruitful 9 9 Since filing its Motion for a Protective Order, FEMA has released to the Governments unredacted copies of the Exercise Free Play Message forms, and the Exercise Evaluator Critique Forms ("EECF") of one of the 38 exercise evaluators. FEMA's (footnote continued)

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VII. Miscellaneous Other Matters Finally, the Governments have the following additional comments on FEMA's motion.

A. FEMA has now apparently agreed to produce for deposition its designated hearing witnesses, and, presumably, FEMA counsel will permit such witnesses to respond to questions concerning their intended testimony, their opinions concerning the admitted contentions, and any other knowledge they have, as evaluators or controllers, concerning the Exercice. The Governments do intend to conduct depositions of such designated witnesses, including Mr. Kowieski, and will re-notice them after the Board's Order on FEMA's Motion for Reconsideration of the Prehearing Conference Order and the Governments' Objections, is issued. The Governments will depose such witnesses individually, not as a panel.

B. FEMA's discussion in its Motion concerning Revisions 7 and 8 of the LILCO Plan, including the repeated references to Revision 7 being "in litigation before the OL-3 ASLB" (agg, g2g.,

FEMA Motion at L), is apparently the product of a failure to recognize that several admitted contentions explicitly refer to (footnote continued from previous page) ostensible reason for releasing the one set of EECFs it has released is that the evaluator (Mr. Tanzman) who prepared the released forms had to leave the Exercise early for personal reasons, and thus filled out his forms on the day of the Exercise, rather than the day after. If, as FEMA asserts, the EECFs are protected by the deliberative process privilege, the Governments are hard pressed to understand how the nature of these forms can vary depending on when the form aas filled out.

"- T Revision 7 of the LILCO Plan, and that Revision 7 purports to contain LILCO's proposed " fixes" to deficiencies found by FEMA l

during the Exercise.

C. FEMA's discussion at pages 7-8 of its Motion fails to address the Governments' discussion of FEMA's waiver of the asserted privilege. Egg Governments' Motion at 54-57.

D. Based upon a letter received on December 10, 1986, the Governments understand that FEMA has, or intends to, submit documents to the Board for in camera review in addition to those which are listed in the FEMA Motion. This FEMA intention was revealed in a response from FEMA counsel to a letter from Susan Casey, counsel for Suffolk County, dated December 10 concerning other previously submitted lists of documents and conflicts between them and the list attached to the FEMA Motion. Copies of both letters are attached. The Governments seek production of the additional documents identified in Ms. Casey's December 10 letter as well as the ones listed in the FEMA Motion and others covered by the Governments' document requests.

l VIII. Conclusion l

The Governments have fully set forth the law relating to the i

deliberative process privilege at pages 34-59 in their Motion, and will not repeat that discussion here. FEMA has now provided the Board with the disputed documents for in camera review. The Governments fully expect that when the documents provided by FEMA are reviewed by the Board in the light of the history and I

policies of the deliberative process privilege, as illustrated by the case law, the Board will conclude that the Governments must be given access to the information they have requested.

Further, the Governments are entitled to depose all of the evaluators who were present at the Exercise, and all persons whom FEMA has named as witnesses, regardless of their status as members of the RAC. The Governments are also entitled to the immediate production of all EECFs completed by the federal evaluators following the Exercise, since by no stretch of the imagination or the law can these documents be deemed

" deliberative." If the Board concludes that any of the other information requested by the Governments in their Motion is somehow " privileged," the Governments respectfully request that the Board recognize that any such privilege has been overcome by the Governments' demonstrated need for the information in order to meaningfully litigate the results of the February 13, 1986 Exercise.

Respectfully submitted, Martin Bradley Achare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 W

Ka'r lah J . Letschef Susan M. Casey n/L KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County

g y nW6 FaUian G. Palomido Richard J. Zahnleuter (q

Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York

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(Meph W B. Latham /

Twomey, Latham & Shea P.O. Box 398 33 West'Second Street Riverhead, New York 11901 Attorney for the Town of Southampton w -

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DCLKETED December 11, 1986 UifEC f UNITED STATES OF AMERICA T6 00: 15 A11:55 NUCLEAR REGULATORY COMMISSION yr -

Before the Atomic Safety an.d Licensino Board ki. m

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

\

CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON RESPONSE TO FEMA'S DECEMBER 1, 1986 MOTION FOR A PROTECTIVE ORDER have been served on the following this lith day of December, 1986 by U.S. mail, first class, except as otherwise noted.

John H. Frye, III, Chairman Dr. Oscar H. Paris Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Frederick J. Shon Spence W. Perry, Esq.

Atomic Safety and Licensing Board William R. Cumming, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 w . - - -- --m -

% --, . - _ r - - pn -- + -e-a,- ,,,y

Anthony F..Earley, Jr., Esq. Bernard M. Bordenick, Esq.

' General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C. 20555 175 East Old Country Road Hicksville, New York 11801 Mr. William Rogers W. Taylor Reveley, III, Esq.*

Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 Fast Main Street 1717 H Street, N.W.

Smitatown, New York 11787 Washington, D.C. 20555 MHB Technical Associates Hon. Peter Cohalan 1723 Hamilton Avenue Suffolk County Executive Suite K H. Lee Dennison Building San Jose, California 95125 Veterans Memorial Highway Hauppauge, New York 11788 Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq.

Suffolk County Attorney Special Counsel to the Governor l Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 I

David A. Brownlee, Esq. Mr. Philip McIntire Kirkpatrick & Lockhart Federal Emergency Management l 1500 Oliver Building Agency l Pittsburgh, Pennsylvania 15222 26 Federal Plaza l New York, New York 10278 l

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KIRKPATRICK & LOCKHART l 1900 M Street, N.W.

,- Suite 800 Washington, D.C. 20036 l

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%, Federal Emergency Management Agency Washington, D.C. 20472 ,

Decemter 10, 1986 Susan M. Casey, Esq.

Kirkpatrick & Lockhart 1900 H. Street, N.H.

Washington, D.C. 20036 Your Letter Dated December 10, 1986

Dear Ms. Casey:

Listed below are all documents indexed in the November 3, 1986, William Gasper to Philip McIntire letter but not produced to you on November 17th in FEMA's Initial Response to your First Request for Production of Documents dated October 10th, with the exception of all pre June 20, 1985 documents.

1. January 24, 1986 Memo from R. Kowleski to file re: Exercise Planning Meeting.

2. . January 23, 1986 Memo from R. Kowieski to file re: conference call with exercise controllers and simulators.

3. January 22, 1986 Letter from C. Daverio, LILCO, to R. Kowieski re:

exercise scenario.

4. January 15, 1986 Memo from R. Kowieski to file re: exercise planning meeting.

5. January 15, 1986 Memo from S. Glass to S. Perry re: Implications of Suffolk County Local Law on Shoreham Exercise, with memo from R.

Kowieski to S. Glass raising questions.

6. January 16, 1986 Memo from R. Kowieski to record re: Shoreham exercise meeting. ,

7. January 21, 1986 Memo from R. Kowleski to all' REP observers, controller, simulators re: Exercise.

8. January 22, 1986 Letter from C. Daverio, LILCO, to R. Kowieski re:

Exercise Scenario.

9. January 23, 1986 Draft Exercise Objectives.

10. January 22, 1986 Memo from R. Kowieski to S. Glass re: Attending LILCO Drill on January 30, 1986 and Information on F.ebruary 13, 1986 Exercise.

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'. 11. January 8,1986 Letter from R. Kowieski to C. Daverio re: Revised Objectives and Proposed List of Demonstrations. q

12. January 9, 1986 Memo from 'R. Kowieski to file re: Conversation with R. Wilkerson re: controllers and simulators.

13. January 8, 1986 Memo from 8. Weiss, NRC, to R. Kowieski re: Exercise.

14. January 8, 1986 Letter from J. Keller to R. Kowieski re: Revised Shoreham Scenario.

15.- December 12, 1985 Letter from J. Keller to R. Kowieski re: Shoreham Exercise Objections.

16. December 11, 1985 Letter from J. Keller to R. Kowieski re: Scenario Projected Thyroid Doses.

17. December 11, 1985 LetterfromJ.KellIrtoR.Kowieskire: Scenario Review.

18. January 6, 1986 Letter from C. Daverio to R. Kowleski re: Response to FEMA Comments on Draft Exercise Scenario. .

19. January 7,1986 Description of what FEMA plans to evaluate, telefaxed to R. Wilkerson.

20. December 30', 1985 Letter from W. Renz, LILCO, to U.S. Coast Guard re: Participation of Coast Guard in Exercise.

21. January 6, 1986 Memo to file from~R. Kowieski re: Planning Meeting.

22. December 18, 1985 Note of telephone conversation from Paula C. re:

H. Fish Objective Comment.

23. [ Undated] List of missing procedures, attachments, etc.

24. January 3, 1986 Memo from R. Kowieski to file re: Controllers' Plan.

25. January 3, 1986 Memo from S. Bank to S. Perry re: DOT Meeting on Shoreham.

26. October 21, 1985 Memo from R. Krimm to E. Jordan re: Transmittal of Objectives.

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. . 27. December 20, 1985 Memo from R. Kowieski to file re: Meeting to Discuss Controllers' Plan.

28. December 19,.1985 Letter from C. Daverio to R. Kowieski re: Revised Objectives and Proposed Demonstrations.

29. December 17, 1985 Letter from R. Kowieski to W. Stokes re: December 6, 1985 Meeting.

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30. December 6, 1985 Letter from C. Daverio to R. Kowleski re: Draft -

Scenario. -

31. December 13, 1985 Letter from C. Ditverio to R. Kowieski re LILCO/ FEMA Meeting on December 12, 1985.

32. December 13, 1985 Letter from R. Kowleski to C. Daverio re: Review of Draft Scenario.

( 33. December 13, 1985 Letter from R. Kowieski to C. Daverlo re: Revised .'

. Objectives and Proposed List of Demonstrations.

34. November 6, 1985 Prcposed exercise objectives for the 1986 Shoreham exercise, followed by J. Keller mark-up of same.

35. December 13, 1985 RAC comments on Proposed Exercise Objectives.

36. [ Undated) Activities to be demonstrated.

37. December 13, 1985 Memo from R. Kowieski to file re: Meeting with LILCO to Discuss Objectives and Scenario.

38. December 12 s1985 Letter from J. Keller to R. Kowieski re:

Additional Scenario Comments.

39. December 10, 1985 Memo from R. Kowieski to flie re: Meeting with Argonne Staff. ,

40. December 10, 1985 Memo from R. Kowieski to file re: R. Bernacki Request to Observe reception Centers.

41. [ Undated] LERO Functions Offsite.

42. December 9, 1985 Letter from W. Stokes to R. Kowleski re: Objectives.

43. December 6, 1985 Note from T. Baldwin re: Objectives.

44. December 6, 1985 Letter from C. Daverio to R. Kowieski re Scenario.

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45. December 6, 1985 Memo to numerous recipients (RAC Members) from R.

Kowieski re: Objectives.

46. December 4,1985 Memo: to numerous recipients (RAC Members) from R.

Kowieski re: Proposed Exercise.

47. November 26, 1985 Memo from E. Tanzman to R. Kowieski re: November 25, 1985 Meeting with LILCO.

48. November 27, 1985 Memo from R. Kowieski to flie re: Telephone l Conversation with M. Novak, DOE.

49. November 25, 1985 Memo from E. Jordan to T. Martin re: Proposed Objectives.

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- v I . 50. November 21, 1985 Memo from R. Krimm to E. Jordan re: Transmittal of Objectives.

51. November 20, 1985 Memo from R. Kowieski to file re: Meeting in FEMA National Office.

52. November 12, 1985 H. Stokes, Shoreham Exercise Control Plan.

53. November 6, 1985 Proposed wind directions for periods of radioactive material release, by J. Keller.  !

54,.- April 16, 1986 handwritten note from H. Jackson to R. Kowieski re:

EBS Messages Reviewed.

55. April 15, 1986 Memo from R. Kowieski to file re: Shoreham Post exercise Assessment.

56. April 11, 1986 Handwritten memo from C. Amato/D. Vito, NRC Region I to R. Kowieski re: Presumed LERO Deficiency.

57. April 8, 1986 Memo for R. Kowieski from H. Jackson re: Comments on Shoreham Draft Post Exercise Report. .

58. April 7, 1986 Memo from R.S. Wilkerson to R. Kowleski re: Redundant Route Alerting.

59. April 9,1986 Draft memo for S. Speck from F.P. Petrone re: Shoreham Post Exercise Assessment Report.

60. April 2, 1986 R. Kowieski notes'of telephone conversation with T.

Baldwin re: Exercise Report.

61. [ Undated) T. Baldwin notes of telephone conversation with E. Tanzman re: Exercise Report.

62. March 24, 1986 Handwritten note from P. McIntire to R. Kowieski re:

F. Petrone's request for Language to be added to Shoreham Exercise Report.

63. April 4. 1986 Letter from E. Tanzman to R. Kowleski sending Sections 3 and 4 of the draft Exercise Report with copy to m. Lawless from T.

Baldwin.

64. April 1, 1986 letter from T. Martin, NRC Re.glon I to J.D. Leonard,

.. LILCO, re: Inspection of Emergency Preparedness Activities February 12-14, 1986; Inspection No 50-322/86-02.

65. March 19, 1986 Letter from J.H. Keller to R. Kowieski re: Comments on the Draft Shoreham Exercise Report.

66. March 14, 1986 Memo from R. Kowieski to Region II RAC and contractors re: Request for review of Draft Shoreham Exercise Report.

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67 .' March 14, 1986 Memo from R. Kcwieski to R.S..Wilkerson re: Shcrehan Exercise - Communications. [

68. February 15, 1986, R. Kowieski's draft highlights for public briefing.

69. (Undated] R. Kowleski's handwritten notes re: Shoreham Exe'*.:se Evaluator Briefing / Training.

70. February 7, 1986 Letter from R. Kowieski to C.A. Daverio, LILCO, re: -

Federal Evaluators, Observers, Controllers, Simulators for Shoreham -

,- Exercise.

71. February 3, 1986 Memo from R.H. Donovan to R. Kowieski re: Shoreham Exercise. -

72. February 10, 1986 Memo from R. Kowleski to M. Sanders re: Shoreham Draft Exercise Control Plan.

-73. February 4, 1986 Letter from J.H. Keller to R. Kowieski re: Revised Data for the Shoreham Exercise.

74. February 3, 1986 Memo from R. Kowleski to all Federal Observers re:

Briefing - Shoreham Exercise. -

75. (Undated) Information regarding dates and issues leading to the Shoreham Exercise.

76. -January 22, 1986 letter from C.A..,Daverio to R. Kowleski re:

Response to letters dated January 8, 1986 and January 10, 1986 and FEMA /LILCO Meeting of January 16, 1986.

77. January 22, 1986 letter from C.A. Daverio to R. Kowieski re:

Response to FEMA /LILCO Meeting of January 16, 1986 and Shoreham Points of Observer Review Document.

78. January 29, 1986 letter from R. Kowleski to C.A. Daverio, LILCO,.re:

Final Exercise Objectives for the 1986 Shoreham Exercise.

79. January 28, 1986 Memo from S. Glass to R. Kowieski re: Shoreham Exercise.

80. [ Undated] Maps of Exercise evaluation locations for Federal evaluators. .-

81. [ Undated] Radiation Emergency Medical Drill Scenario; Shoreham Nuclear Station / Control Suffolk Hospital.

82. (Uncated] List of procedures for the LILCO Transition Plan for Shoreham with handwritten note by R. Kowieski re: Contact with Bill Adikoff, Adikoff Assoc.

83. January 17, 1986 Memo from P. Lutz to FEMA Region 2 RAC Chairman re:

I Coast Guard Participation in the Shoreham Exercise.

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84. January 28, 1986 Final Exercise Objectives for the 1986 Shoreham Exercise.

85. January 10, 1986 Letter from R. Kowieski to C.A. Daverio re:

Shoreham Exercise (Revised) Dated January 6,1986.

86. May 1986 Attachnent 1. LILCO Emergency Response Organization Traffic Control Tabletop Drill V, Rev. O.

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87. (Undated] Attachment 2, Dispatch of General Population Buses from

, the Patchogue Staging Area During the February 13, 1986 Exercise.

8N. February 3, 1986 Memo from R. Kowleski to all REP Evaluators at the Shoreham Exercise enclosing the pre-exercise materials.

89. February 3, 1986 Memo from R. Kowleski to FEMA Region II controllers 4 and simulators enclosing the FEMA Region 11 Controller and Simulator 9

Plan.

90. LUndated] Vu-graphs concerning REP prepared during R. Kowieski's visit to ANL in early February.1986.

91. April 7,1986 PEA Draft (R. Kowleski's personal copy),

92. April 7,1986 PEA Draft (two additional copies).

93. March 12, 1986 PEA draft (consolidated copy).

94. March 12, 1986 PEA draft (two additional copies).

95. (Undated] Original Exercise Evaluation Critique Forms.

96. (Undated] S. Hacintosh review of March 12, 1986 PEA Draft.

97. (Undated] P. Neberg review of March 12. 1986 PEA Draft.

98. (Undated] P. McIntire review of March 12, 1986 PEA Draft.

99. (Undated] J. Connolly review of March 12, 1986 PEA Draft.

100. (Undated] M. Lawless review of March 12, 1986 PEA Draft.

101. March 12, 1986 Draft of Table 2.1 EBS and Siren Events Timeline.

102. (Undated] H. Fish review of March 12, 1986 PEA Dra'ft.

10)...CUndated]R.BernackireviewofMarch 12, 1986 PEA Draft.

l 104. (Undated] Bob Turner review of March 12, 1986 PEA Draft.

105. (Undated] RFR review of March 12, 1986 PEA Draft.

l 106. April 7, 1986 Draft Tables to PEA (three sets).

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'* 107. March 20, 1986 Letter P. Giardina to R. Kowieski re: Draft PEA. ,

108. March 3, 1986 Letter from D. Connors to R. Kowieski re: Plan Changes.

109. March 17, 1986 Letter G. Bickerton to R. Kowieski re: Draft PEA.

110. March 1.7, 1986 Memo to ANL Shoreham Evaluators from E. Tanzman re:

Review of Draft PEA.

111. [ Undated] Unidentified marked.up copy of March 12, 1986 PEA draft. -

112; (Undated] Bob Turner review of April 7,1986 PEA Draft.

113. [ Undated) M. Jackson review of April 7, 1986 PEA Draft.

114. [ Undated] Three unidentified marked up copies of April 7,1986 PEA Draft.

115. [ Undated] Scenario No. 8 (Re. 2).

116. [ Undated] Scenario and radiological slides used at evaluator training.

117. September 24, 1985 Memo from F. Petrone to S. Speck transmitting RAC ' '

Review of LILCO Transition Plan for Shoreham, Revision 5.

118. February 3,1986 Memo from R. Kowleski and R.H. Donovan to FEMA -

Region I Controllers and Simulators re: Shoreham Exercise of -

February 13, 1986. _-

119. [ Undated] Controller and Simulator Plan for the Shoreham Exercise of February 13, 1986.

Certain items have not been produced to you and are being sent to the Board for in camera inspection. These include items 1-3 and 5-22 as listed in your letter. Item 4 was served on all parties on November 26th and a copy is included for your convenience. The document given to the Board was produced to you at the Donvan deposition, but I will furnish you a copy as soon as possible. I will indicate to you based on the above list the date you were furnished the documents not sent to the Board for in camera inspection in the next several days.

Sincerely, .

l, L_ -

William R. Cumming cc: Service List

O KIRKPATRICK & LOCKHART 1900 M STREET. N.W.

WASHINoToN D.C.20036 095 BOSTON PLACE aOSTON MA 02100 M 452M Wih 9D 5400 1428 BRICKELL AVENUE TEL500fER 00D 4521052 g pg 33,3 0 05) 374 4112 1500 OLIVER BUILDING PITT58URGH, PA 15222 WRITER 1 DIRECT DIAL NUMBER H12) 3554500 December 10, 1986 BY MESSENGER William R. Cumming, Esq.

Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 2

Dear Mr. Cumming:

I am writing to ask you to identify the documents you have been turning over to us during the past'two weeks. At this point, between the documents you have been turning over to us

! at depositions, the pile you sent under cover of your letter of

November 27, 1986, and the pile that was sent to our office on December 5, 1986, I am nearly at a complete loss to understand what the documents are, as well as what FEMA is producing and what it is withholding.

! I believe the December 5, 1986 pile was what you identified to me over the phone as " Controller Logs." While these documents i do contain the EOC and Port Jefferson Controller logs, the vast I majority of the documents appear to be LERO generated messages and hand-outs, Radiological Emergency Data Forms, EBS messages, Simulator Logs and handwritten notes, apparently by FEMA

- evaluators. Many of the handwritten notes are unidentified as to author and/or as to when, where, or about what the notes were taken. Please identify these documents, and indicate where they come from and to which of our requests they are responsive. Do we now have all of the Controller Logs presently in existence,

and if so, what happened'to the rest of them? Do we now have j all notes taken during the Exercise by federal evaluators, or

. just the notes of Argonne personnel?

i i Many of the documents you described in your November 27, i

1986 letters as "all pre-exercise documents that have not

{ previously been served" have in fact been produced to us in the i past -- several of them, more than once. Is there a different j set of documents in existence which are, in fact, pre-exercise documents not previously served on us? If so, please provide them.

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KIRKPATRICK & LOCKHART Willicm R. Cumming, Esq.

Federal Emergency Management Agency December 10, 1986 Page 2 Has the "Index of Documents as to which Executive or Deliberative Privilege is Claimed", which was attached to FEMA's November 28, 1986 ' Motion for a Protective Order, superseded the annotated " inventory of documents" attached to FEMA's November .

17, 1986 " Initial Response to Suffolk County's First Request for Production of Documents by the NRC Staff and FEMA"? If so, please advise us of the status of the following documents, whose production was objected to in your November 17, 1986 Response, but which do not appear to be listed on FEMA's most recent index:

(1) 4/16/86 handwritten note from M. Jackson to R. Kowieski re: EBS Messages reviewed (2) 4/11/86 handwritten memo from C. Amato/D. Vito, NRC Region I to R. Kowieski re: Presumed LERO Deficiency 6 (3) 4/8/86 Memo for R. Kowieski from M. Jackson re: Comments on Shoreham Draft Post Exercise Report (4) 4/7/86 Memo from R.S. Wilkerson to R. Kowieski re: Redundant Route Alerting (5) 4/9/86 Draft Memo for S.W. Speck from F.P. Petrone re: Shoreham Post Exercise Assessment Report (6) 4/2/86 R. Kowieski Telephone conversation notes re: Exercise report with T. Baldwin (7) No date T. Baldwin, telephone conversation notes re: Ex report with E. Tanzman (8) R. Kowieski's draft highlights comments for public briefing 2/15/86 (9) R. Kowieski handwr.itten notes re: Shoreham Exercise Evaluator Briefing / Training (10) 1/10/86 letter from R.B. Kowieski to C.A. Daverio, re: Shoreham Exercise Scenario (revised) dated Jan. 6, 1986 (11) S. McIntosh Review of 3/12/86 PEA draft m

. KIRKPATRICK & LOCKHART William R. Cumming, Esq.

Federal Emergency Management Agency December 10, 1986 Page 3 (12) P. Weberg Review of 3/12/86 PEA draft (13) P. McIntire Review of 3/12/86 PEA draft (14) H. Fish Review of 3/12/86 PEA draft (15) R. Bernacki Review of 3/12/86 PEA draft (16) Bob T. review of 3/12/86 PEA draft (17) RFR review of 3/12/86 PEA draft (18) Letter from P. Giardina to R.K., dated 3/20/85 [ sic] on draft PEA (19) Letter from D. Connors to R.K., 3/3/86 on plan changes (20) Letter from G. Bickerton to R.K. dated 3/17/86 on draft PEA (21) M. Jackson review of 4/7/86 PEA draft (22) 2/29/84-Memo from F. Petrone to S. Speck re: revised pages of RAC Review Have these documents also been turned over to the Board for in camera review? If not, when is FEMA planning to produce the documents for us?

Finally, we do not have the document you gave to the Board during the December 4 conference of counsel. Please provide a copy.

Thank you for your assistance in these matters.

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. Sincerely, w$

i Susan M. Casey SMC/pb P.S. As I was drafting this letter, we received your December 9, 1

1986 letter and a shrink-wrapped stack of additional documents.

With the exception of the notation in your December 9 letter that your are still in the process of locating evaluator handwritten notes, your most recent transmittal does nothing to clarify the questions I have raised above.

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