ML20246H645
| ML20246H645 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/05/1989 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8572 OL, NUDOCS 8905160153 | |
| Download: ML20246H645 (7) | |
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'89 MAY -8 A11 :35 May 5, 1989
(
UNITED STATES.0F4 AMERICA NUCLEAR REGULATORYr. COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ivan W. Smith, Chairman Richard F. Cole Kenneth A. McCollom
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Docket No. 50-443-OL-1 In the Matter of
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(Off-site Emergency PUBLIC SERVICE COMPANY OF
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Planning and Safety OF NEW HAMPSHIRE, et al.
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Issues)
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(Seabrook Station, Unit 1
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SEACOAST ANTI-POLLUTION LEAGUE'S MOTION FOR RECONSIDERATION OF THE BOARD'S RULING ON SAPL'S MOTION TO COMPEL PEMA EXERCISE NOTES Now comes the Seacoast Anti-Pollution League and moves that the Board reconsider its March 30, 1989 ruling in regard to SAPL's motion to compel production of exercise-related documents by FEMA.
The Board denied SAPL's motion in its entirety based on FEMA's claim of deliberative process privilege.
SAPL made its request for production of any written comments on drafts of FEMA's report on the 1988 Seabrook graded exercise at the deposition of William P. Creamer on February 16, 1989.
At his.
deposition, Mr. Creamer produced a page of his handwritten notes and no claim of deliberative process privilege was made for his notes or similar documents at that time.
Indeed, when counsel for FEMA wrote to SAPL on March 17, 1989, FEMA took the position that 8905160153 890505 R
PDR ADOCK 05000443; G
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1 further production of such documents would be withheld simply because FEMA deemed them "not relevant" to any admitted contentions (see letter of H. Joseph Flynn, Esq. to Robert Backus, Esq. appended hereto.)
No reference to deliberative process privilege was made.
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On March 27, 1989, SAPL filed a motion to compel production of the documents identified in the March 17, 1989 FEMA letter, documents of Kevin Merli of FEMA Region I and Martin Simonin of Argonne National Laboratory.
Since no deliberative process privilege ground for withholding the documents had been mentioned in the FEMA letter, SAPL did not address that argument in its motion to compel.
Attorney Flynn informed SAPL by telephone prior to and at the hearing that he would be raising a deliberative process privilege argument in re' ponse to the motion.
s Oral argument was heard on the motion on April 29, 1989.
The specifics of the Creamer production were not known at that time by the SAPL representative arguing the motion, though SAPL made the general point that the deliberative process privilege had been waived because documents had previously been produced by a FEMA witness who had both been deposed and had testified at the hearing.
As argued, SAPL holds that the production of withheld documents is necessary to SAPL to test the credibility of PEMA's witness as to the process that was carried out in producing the Final FEMA report from the observer notes and from the Draft Report.
It is very clear from comparing the Draft and Final I
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Exercise Reports that substantive statements were removed from the Draft Report in the preparation of the Final Report.
SAPL believes that it has made a clear showing of need for the l
documents, a need that is not cured by having Mr. Donovan testify at the hearings since it is his credibility which is at issue.
FEMA counsel has conceded that the deliberative process privilege can be overcome by a showing of need.
Further, this Board's chairman stated on March 29 that:
"The value of that report to this Board as evidence, as we have discussed many times, will depend upon how well the rationale supporting that report can be probed.
And that would include, in my view, probing matters which would otherwise be deliberative process because in this case there would be no other opportunity to probe the rationale as compared to another case where you must start fresh, maintain your burden of proof, produce evidence to do it.
In this case you're not required to prove your basis.
The law says there is a rebuttal (sic) presumption.
The value of that rebuttable presumption depends upon how well you arrived --
what is the quality of the rebuttable presumption when it is attacked as it (sic) here."
(Tr. 17305-17306)
On April 26, the Board's Chairman stated that the deliberative process privilege is not for the purpose of hiding facts.
SAPL believes that its rights to due process are prejudiced by denial of access to those documents. -
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WHEREFORE, SAPL moves the Board to reverse its prior ruling and order FEMA to produce the documents identified in FEMA's March 17, 1989 letter.
Respectfully submitted, Seacoast Anti-Pollution League By its Attorneys, BACKUS, MEYER & SOLOMON By:
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RQbp(t A'. Backus, Esquire 116 Lowell Street P.O. Box 516 Manchester, NH 03105 (603) 668-7272 DATED:
May 5, 1989 I hereby certify that copies of the within Motion for Reconsideration have been forwarded by first-class mail, postage prepaid to all parties on the attached service list.
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Robef t' A'.' Backuff, 'Esq'uire
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Washington, D.C. 20472
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l March 17, 1989 i
i Robert Backus, Esq.
Backus, Meyer & Solomon 116 Lowell Street Manchester, NH 03106
. Re: Your request for production of documents regarding review of draft FEMA report on 1988 Seabrook Graded Exercise
Dear Mr. Backus:
In response to your request for production of any written comments on drafts of FEMA's report regarding the 1988 Seabrook graded exercise, I communicated with the individuals who were asked to review the draft reports and inquired whether any of them had any such documents in his or her possession.
My inquiry has disclosed that Kevin Merli of FEMA Region I and Martin Simonin of Argonne National Laboratory retained documents related to their review of a draft of the exercise report. Each of these documents, however, relates solely to the Mana portion of the exercise. My inquiry disclosed no other documents in FEMA's poscession resporisive to your request that have not already been provided.
I am withholding the Merli and Simonin. documents from production for the reason that their subject matter is not relevant to any contention admitted in the pending Seabrook hearings or likely to lead to the discovery of admissable evidence and thus beyond the scope of discovery.
Sincerely,
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H. Josep!
Flynn Assistant General Counsel a-
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______________-..e-n.--m--.m m#
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JIvin.W. Smith, Chairman.
Suzanne Breiseth Thomas Dignan, Esquire At.omic Safety and Board of Selectmen Ropes & Gray
. Licensing Board Town Hall One Internati'onal Place s
US NRC One Drinkwater Road Boston, MA 02110-2624 Washington, DC 20555 Hampton Falls, NH 03844
'89 Ml!Y -8 All 35
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Docketing & Service Sec.
Jane N gt;ty.
Kenneth A. McCollom fi Atomic Safety and Office of the Secretary SAPL Licensing Board US NRC 5 Market Street.
US NRC.
Washington, DC 20555 Portsmouth, NH 03801 Washington, DC 20555 i
Office of Selectmen-Richard F. Cole Geoffrey Huntington, Esquire
. Town of Hampton Falls Atomic Safety and Licensing Attorney General's Office i
Hampton Falls, NH 03844 Board State House Annex US NRC Concord, NH 03301 Washington, DC 20555 f
Ashod N. Amirian, Esquire Joseph Flynn, Asst. Gen. Cnsl.
Sandra Gavutis 145 South Main Street Federal Emergency Town of Kensington
.j P.O. Box 38 Management Agency Box 1154
-Bradford, MA- 01835 500 C Street SW East Kensington, NH 03827
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Washington, DC 20555 John Traficonte, Esquire Sherwin E. Turk, Esquire Charles P. Graham, Esquire Assistant Attorney General Office of Exec. Legal'Dr.
McKay, Murphy and Graham One.Ashburton Place US NRC 100 Main Street 19th Floor Washington, DC 20555 Amesbury, MA 01913 i
Boston, MA 02108 j
i R. Scott Hill-Whilton, Esq.
Judith H. Mizner, Esquire William S. Lord
-79 State Street 79 State Street Office of Selectmen Newburyport, MA 01950 Newburyport, MA 01950 Town Hall Friend Street Amesbury, MA 01913 Diane Curran, Esquire Paul McEr.chern, Esquire Senator Gordon J. Humphrey Harmon, Curran & Tousley Shaines & McEachern US Senate 20001 S Street NW 25 Maplewood Avenue Washington, DC 20510 Suite 430 P.O. Box 360 Attn:
Janet Coit Washington, DC 20009 Portsmouth, NH 03801 l
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4 J. P. Nadeau Town of Rye 155 Washington Road
-Rye, h1 03870 Adjudicatory File Atomic Safety and Licensing Board Panel US NRC Washington, DC 20555 a
Richard R. Donovan FEMA Federal Registry Center 130 228th Street, SW Bothell, WA 98021-9796 Robert R. Pierce, Esquire Atomic Safety and
-Licensing Panel US NRC Washington, DC 20555 l
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