ML20215E703

Memorandum & Order Directing FEMA to Make Designated Witnesses & Exercise Evaluators Available for Deposition & to Permit Witnesses to Respond to Questions Concerning Testimony & Admitted Contentions.Served on 861218

ML20215E703
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/17/1986
From:	Frye J, Paris O Atomic Safety and Licensing Board Panel
To:	Federal Emergency Management Agency
References
CON-#486-1929 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8612230079
Download: ML20215E703 (7)

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0 gg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '06 DEC 18 pp;7g Before Administrative Judges 6FFr -

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John H Frye, III, Chairman W6, ,

Dr. Oscar H. Paris Mr. Frederick J. Shon sfRVED DEC181986 In the Matter of Docket No. 50-322-0L-5 (EPExercise)

LONG ISLAND LIGHTING COMPANY l (Shoreham Nuclear Power Station, Unit 1) December 17, 1986 MEMORANDUM AND ORDER (Ruling in Part on Intervenors' Motion to Compel

. FEMA to Produce Witnesses for Deposition, to Permit Witnesses to Answer Deposition Questions, and to Produce Documents)

On November 18, Intervenors filed a 61-page motion requesting an order compelling FEMA to make certain witnesses available for deposition, to permit those witnesses to answer questions, and to produce certain documents. The events which preceded the filing of the motion are complex and are recited at pages 3 through 13 of the motion.

Certain relevant events which followed the filing of the motion are related in letters of December 1 and 3 to the Board from Kirkpatrick &

Lockhart, counsel for Suffolk County, who also stated the views of the State of New York and the Town of Southampton. On December 1, FEMA B612230079 861217 DR ADOCK 0500 2  %

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responded to the motion.1 That response does not take issue with the events recited in the motion, nor did counsel for FEMA bring up the December 1 and 3 letters at a conference of counsel held on December 4.2 While we do not decide this dispute in its entirety in this Memorandum and Order, we do provide guidance designed to speed the discovery process. At this point, FEMA's posture with regard to discovery threatens to enmesh this proceeding in procedural wrangling and delay a resolution on the merits. Consequently, guidance is necessary to remedy some of the problems which have contributed to bogging down the discovery process. Before doing so, we outline the discovery situation as it currently exists between FEMA and the Intervenors.

It appears that FEMA has taken the following actions with regard to discovery which Intervenors have attempted:

1. Fiveexerciseevaluators(Laine, Jackson, Smith,Saricks,and Tanzman) were made available for deposition but were unable to answer questions concerning their observations during the exercise without reference to their notes, exercise evaluation forms, and exercise sumaries. All of these had been turned over to FEMA's counsel to review for privileged information. This review was not completed prior l

I In its response FEMA also moved for a protective order.

Intervenors responded to this motion on December 11.

2 In a letter to the Board of December 3. Staff counsel indicated that Staff would not file a response to the motion. LILC0 did respond to the motion on December 1, but did not quarrel with the events stated by intervenors.

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to the depositions. Additionally, these witnesses were directed not to answer certain other questions on the grounds of the deliberative process privilege. (See December 1 letter, p. 3.) It appears that some of the notes, evaluation forms, and summaries may be included in the documents-which FEMA has provided the Board under seal. .(See paragraph 3,below.)

Four exercise evaluators who work for organizations other then FEMA (Herbert Fish - Department of Energy, Cheryl Malina - Department of Agriculture, Ronald Bernacki - Food and Drug Administration, and Paul Giardina - Environmental Protection Agency) were not produced for deposition. Counsel for FEMA indicated that, assuming he received authorization to represent these individuals, they would not be produced. However, he also indicated that he would not object to their depositions if he did not receive authorization to represent them.

(Motion,p.9.)

FEMA has designated six witnesses to testify at the hearing:

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Roger B. Kowieski, Philip McIntire, Thomas E. Baldwin, Joseph H. Keller, Richard Donovan, and Ihor Husar. On November 10, FEMA's counsel informed counsel for Intervenors that he would not produce witnesses Kowieski, Keller, and Baldwin for deposition on the grounds of the deliberative process privilege. (Motion,pp.6-10.) Counsel for FEMA also advised that he would not permit designated witnesses Husar, McIntire and Donovan answer questions concerning the admitted contentions or the scope of their testimony. (See letter of December 3, pp.1-2)

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3. FEMA has withheld certain documents which were requested on the grounds of the deliberative process privilege. (See motion, pp.

11-12; FEMA's response to the motion and accompanying letter from counsel of December 1 and FEMA counsel's letter to the Board of December 15.) These have been provided to the Board for in camera review.

As a result of these actions, Intervenors request an order directing:

1. FEMA to produce its designated witnesses Kowieski, Baldwin, and Keller, and exercise evaluators Fish, Malina, Bernacki, and Giardirm for deposition;3

2. FEMA to permit witnesses to respond to questions concerning events prior to, during, and after the exercise provided the questions are relevant to the admitted contentions; and

3. FEMA to produce documents which are responsive to requests

, which are relevant to the admitted contentions.

.' In support of these requests, Intervenors argue that:

- FEMA has not properly asserted any privilege;

- If properly asserted, the privilege is not applicable;

- If properly asserted and demonstrated to be applicable, the privilege has been waived; and i

- If the privilege is properly asserted and applicable, and

> 3 In the event counsel for FEMA cannot compel attendance of the exercise evaluators, Intervenors request the issuance of subpoenas, i

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[ has not been waived,.the Intervenors' need for the information outweighs FEMA's need for confidentiality.

FEMA' has asserted a claim of deliberative process privilege with respect to three cartons of documents which it has furnished the Board for jn. , camera examination. (See affidavit of Julius W. Becton, Jr.,

s Director of FEMA, attached to FEMA's response.) Because Director Becton s makes no mention 'of a claim of privilege with respect to testimony in his affidavit, FEMA..has not properly raised such a claim with respect to the depcsitions which Intervenors wish to take. Nor could such a claim

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,d properly be asserted on a blanket basis, barring the entire testimony of 1

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jt(particular' individuals.

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, I consequently, the Board will review the documents which have been furi,shedbyFEM(todeterminetheapplicabilityoftheprivilegein light of the arguments for and against disclosure and issue an 4'

g appropriate ruling. Because a claim of privilege has not been properly n'

asserted with respect to testimony, FEMA is to make its designated 4

witnesses and exercise evaluators available for deposition and permit them to respond tc questions concerning their testimony and the admitted contentions. In this regard, FEMA is reminded that tt [o]bviously, the County is entitled to probe the FEMA i

findings, explore their bases, assess their accuracy, and determine what reliance should be placed on them. To that N

' 4 We have issued subpoenas requested by Intervenors for the four exercise evaluators, w

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• a end, FEMA will make its sponsoring witnesses available for deposition and cross-examination. They may be examined as to the soundness and reliability of the scientific assumptions or professional judgments underlying the FEMA findings.

(Af.AB-773, 19 NRC at 1343-44.) While we recognize that no FEMA findings e;;ist with respect to the exercise, FEMA has stated conclusions in its

• Post Exercise Assessment. For purposes of this proceeding, these conclusions are to be opened to examination to the same extent that findings would be if they existed.

We recognize that claims of deliberative process privilege may be raised in response to specific qurstions posed to witnesses at a v - depositiun. In the event that these claims are raised, the following procedure is to be followed:

At the conclusion of a deposition in which specific questions

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are objected to on the basis of the deliberative process or another privilege, the Intervenors are to state on the record the specific questions to which they seek answers, together with a detailed recitation of litigative need.

2. No later than the second day following the deposition, Intervenors are to deliver a copy of the deposition to the Board and FEMA is to deliver to the Board and counsel the affidavit of Director Becton stating why the privilege applies and what harm the disclosures would cause. Additionally, FEMA is to deliver to the Board for M t

camera review a detailed sumary of the responses which would have been made absent the claim of privilege.

s In adopting this procedure, the Board specifically disapproves the --

practice adopted by counsel for FEMA of refusing to make witnesses available for deposition and refusing to permit answers to certain questions by those witnesses who are made available. If counsel wishes to assert a claim of privilege, he must follow the above procedure. If -

counsel wishes to assert another objection, he is to follow the procedure set down in 10 CFR 2.740a(d), and the witness is to be permitted to answer. The procedure which counsel has followed to date $

greatly threatens the discovery schedule established by the Board and  :

wastes the resources of the parties. It shall be discontinued.  :

It is so ORDERED.

ATOMIC SAFETY AND LICENSING BOARD Frederick J. Shon *

< ADMINISTRATIVE JUDGE MI , (Il Dr. Oscar H. Paris ,

ADMINISTRATIVE JUDGE MT/

John H F ye, III, Chairman F

ADMIN,ISTRATIVE JUPGE

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Bethesda, Maryland

• Judge Shon concurs on this Memorandum and Order but was unavailable to sign.

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