ML20063G927
| ML20063G927 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/31/1982 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8209010247 | |
| Download: ML20063G927 (27) | |
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") USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .. ---
T2 AGO 31 P2:17 Before the Atomic Safety and Licensing' Board
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In the Matter of )
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LONG ISLAND LIGIITING COMPANY ) Docket No. 50-322 (OL)
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(Shoreham Nuclear Power Station, )
Unit 1) )
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RESPONSE AND OPPOSITION OF SUFFOLK COUNTY TO LILCO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS On August 23,- 1982, LILCO filed a " Motion to Compel Production of Emergency Planning Documents." On August 25, 1982, LILCO supplemented that motion to include additional documents described in an August 24 letter from Suffolk County's counsel.
The LILCO Motion, as supplemented, has two facets. First, l
LILCO objects to the timing of the County's production of documents, arguing that the County was required to prcduce all documents by August 3, 1982. Second, LILCO disagrees with the County's asserted privilege claims against production of certain documents described in letters of August 11 and 24 from Suffolk County's counsel to LILCO's counsel. LILCO asks in each instance that the Board order full and immediate production of all documents.
In accordance with the schedule announced by the Board, the County responds below to the LILCO motion. The County submits that -
the Motion should be denied.
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,n 8209010247 820831 _
DR ADOCK 05000
Alleged Failure of County to Respond to LILCO Production Requests LILCO first complains about the fact that the County did not produce all emergency planning documents by August 3, 1982.
As LILCO recognizes in its motion, the County began producing docu-ments on July 26, 1982. Additional batches of documents were pro-duced on August 5, 9, 14 and 16. The County is continuing to pro-duce documents as speedily as it is able to do so, and can now represent that all documents will be produced on or before September 3, 1982.-1/
In view of the fact that production will be complete this week, LILCO's motion in this regard for an order compelling production is essentially moot. The County notes two additional points, however.
First, it must be made clear that LILCO nas known since late July that due to the dimensions of LILCO's requests, the County could not produce all documents by early August. Neverthe-less, LILCO refused to narrow its requests to facilitate more prompt production. In this regard, LILCO was alerted as early as July 26, 1982, and in telephone conversations before and since that date, that there was potentially a vast volume of documents that might be construed to fall within LILCO's document requests. The i
( 1/ Essentially all County documents were produced by August 16.
Counsel understands that only a small number of documents from ~
! the County Executive's office remain to be produced. Contrary to the suggestion at page 4 of LILCO's motion, documents in the possession of the County's consultants have been produced.
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i County advised LILCO that its various agencies had emergency procedures for a wide range of events ranging from nuclear and natural disasters to such other emergencies as finding con-taminated food in a supermarket and getting a check cashed on a Sunday. In view of the foregoing, LILCO was asked to narrow its requests. In response, LILCO declined to narrow its requests. Indeed, it stated that the County's procedures for tracking down contaminated canned tuna fish in super-markets could in its view be relevant and thus were intended to be encompassed by LILCO's requests.
Second, if LILCO objected to the County's failure to complete production by August 3 or 6, it should not have waited untii August 23 to move to compel. Under 10 C.F.R. 52.740 (f) (1) ,
a motion to compel should have been filed within ten days of August 3 or 6. Thus, LILCO's motion which complains of untimely County response is itself untimely.
County Response to LILCO Motion to Compel Production of Documents Withheld Under Claim of Privilege Pursuant to the Board's request, counsel for the County and LILCO have discussed each document withheld under claim of privilege. Based upon these discussions, many items in the August 11 County letter and one item in the August 24 letter have been resolved and require no Board ruling. The Board will find attached hereto copies of the August 11 and 24 letters with resolved items crossed out. -
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Notwithstanding these discussions, a number of documents remain in dispute. The County addresses below the privilege claims as applied to the specific documents. First, however, the County will respond to several general complaints contained in LILCO's motion.
LILCO argues that the County in its August 11 letter pro-vided "no grounds" for the privilege claims and that it "is not possible to evaluate the County's claims of privilege because the County provides no details." Motion, p. 4. This is not true. The County has identified the author, recipient, date and subject matter of the requested documents in its letters of August 11 and
- 24. As to each document or group of documents, the privilege (s) that applied was (were) specifically noted. This is the type of information which in our experience is normally provided when privilege claims are asserted. LILCO never demonstrates why it is unable to evaluate the claims based upon the data which were
! provided but rather makes a general, nonparticularized allegation of being unable to evaluate the claims.
LILCO also complains that the County failed to provide legal citations to support its privilege claims. Motion, p. 4.
The short answer is that neither the NRC rules nor general federal practice require a listing of legal authorities when asserting a privilege claim.
LILCO further complains that the County acted improperly in failing to seek a protective order. See Motion, pp. 4-5; 10 C.F.R. 52.740(f). However, a party is not required to seek a protective order when, as in the case of the County, the party does in fact respond.
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Finally, LILCO complains that the County's initial response to the document requests did.not include a list of documents being withheld. LILCO fails to note the County's explanation for having submitted the list on August 11:
As I stated to you by phone in the late after-noen on Monday, August 9, 1982, you did not receive this list [of privileged documents]
earlier because I was receiving the documents from Suffolk County in phases, and felt that it would be more efficient for both sides to receive one document listing all materials we consider privileged, rather than a number of shorter lists. August 11 letter, 11.
Thus, the County clearly was not attempting to hamper discovery by submitting the list of documents on August 11.
Turning to the actual privilege claims themselves, the County has asserted that documents fall under three privileges:
the attorney-client privilege, the work product doc. trine, and the intragovernmental deliberative process privilege. These privileges are each generally described below.-2/
The elements of the attorney-client privilege can best be stated by repeating the widely quoted judicial definition in United States v. Uni ted Shoe Machinery Corp. , 89 F. Supp. 357, 358-59 (D. Mass. 1950):
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communi-cation was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which 2/ The County will describe the attorney-client privilege and work product doctrine briefly, given the Board's assumed familiarity with these. The intragovernmental deliberation privilege is discussed in more detail, since its bases are not as commonly understood.
the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
The privilege has been held to apply also to communications from an attorney to a client made for the purpose of rendering legal 3/
services to the client.
The discovery rules regarding the work product doctrine are derived from the Supreme Court's decision in Hickman v. Tavlor, 329 U.S. 495 (1947). The NRC's rules, 10 C.F.R. S 2. 740 (b) (2) ,
specifically embody the doctrine:
A party may obtain discovery of documents and tangible things otherwise discoverable under subparagraph (1) of this paragraph and prepared in anticipation of or for the hearing by or for another party's representa-tive (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking dis-covery has substantial need of the materials in the preparation of the case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect
-3/ See Natta v. Hogan, 392 F.2d 686, 693 (10th Cir. 1968); Garner
- v. Wolfinbarger, 430 F.2d 1093, 1096 n.7 (5th Cir. 1970), cert.
denied, 401 U.S. 974 (1971); Schweinner v. United States, 232 F.2d 855, 863 ( 8th Cir. ) , cert. denied, 352 U.S. 833 (1956); United States v. Osb orn. , 409 F. Supp. 406 (D. Ore. 1975), modified on -
other grounds, 561 F.2d 1334 (9th Cir. 1977); Diematic Mfg. Corp.
- v. Packaging Industries, Inc., 22 Fed. Rules cerv. 2d 1015 (S.D.N.Y. 1976). But See SCM Corp. v. Xerox Corp. 70 F.R.D.
508, 520-22 (D. Conn.), appeal dismissed, 534 F.2d 1031 (2d Cir. 1976) against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
Finally, the County asserts a component of executive privilege, which is the privilege against disclosure of interagency or intra-agency documents containing advisory opinions, recommendations and deliberations which comprise "part of a process by which governmental decisions and policies are formulated." N.L.R.B. v.
Sears, Roebuck & Co., 421 U.S. 141, '50 (1975); see, Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (1966) ,
aff'd 384 F.2d 979 (1967). The rationale for the privilege is that candid discussion of and advice regarding legal or policy matters would be inhibited if disclosed to the public. Sears, Roebuck & Co.,
supra;. Smith v. F.T.C., 403 F. Supp. 1000, 1015 (D. Del. 1975). The ultimate goal is protection of the " decision making processes of government agencies." Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (6th Cir. 1972). Even though the privilege focuses on predecisional deliberations, the Supreme Court has held "that documents l shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice, including analysis, reports, and expression of opinion within the agency." Federal Open Market Committee of the Federal Reserve System v. Merril, 443 U.S.
340, 360 (1979).
The privilege is qualified and, therefore, may be overcome by an appropriate showing of need. See United States v. Capitol Services, Inc., 89 F.R.D. 578, 583 (1981). In balancing the interests to determine whether disclosure would be more injurious to an agency's decisionmaking process than nondisclosure would be s
to a private litigant's case, a court will consider, inter alia, !
the importance of the documents to the private litigant and the availability elsewhere of the information contained in the documents.
Cf. United States v. Leggett & Platt, Inc., 542 F.2d 655, 659 (6th Cir. 1976).
i With the foregoing introduction, the County now will address the documents which have been withheld by the County. In the interest of permitting the Board a full opportunity to consider this matter, the County is voluntarily producing the documents to the Board for its in camera review. The County believes that such review may not be necessary but the County also does not wish to prolong this matter, something which might occur if, upon review of this filing wit,htut the benefit of the documents, the Board determined that it needed to review the materials. The documents produced for possible l in camera review are grouped for discussion purposes as discussed below.
At pages 2, 3 and 5 (top) of the August 11 letter (Group I l
l of the in camera submission) , the following documents are withheld I
i on the basis of the attorney-client and intragovernmental communication privileges.
I A letter from Patricia A. Dempsey, Assistant County Attorney, to Robert C. Meunkle, dated February 3, 1982, regarding use of school buses and school building in case an evacuation is required.
A letter from Robert C. Meunkle to Patricia -
Dempsey, dated February 24, 1982, regarding school district participacion during a radiological emergency.
A letter from Robert C. Meunkle to Patricia A. Dempsey, dated April 30, 1981, regarding legal documents necessary to guarantee availability of facilities, equipment and services required for.an evacuation plan.
A letter from Richard A. Strang, Deputy Commissioner, Department of Transportation, to Patricia Dempsey, dated August 20~, 1980, regarding time estimates for evacuation.
Each of the' foregoing letters involves Ms. Dempsey, an attorney employed by Suffolk-County who was performing work relating to pre-liminary County planning to respond to a Shoreham emergency.
Mr. Meunkle was employed by the County Planning Group and Mr. Strang is the County Commissioner of Transportation. Hence, in each instance there is a communication between-the attorney and the client. Further, the communications ~ involve the County's preliminary planning efforts whereby the County was considering options regarding bus and emergency facility use and the preliminary views of the County regarding evacuation times. As such, the documents are protected under both the attorney-client and intragovernmental communication privileges.
Group II of the in camera submission consists of the documents listed under number "2" on pages 5 and 6 of the August 11 letter. As described in the August 11 letter, these are:
PRC Voorhecs' notes on LILCO's emergency plan.
Memorandum to Dr. Edward P. Radford from Chris McMurray, Counsel to Suffolk County, dated May 25, 1982, regarding Dr. Radford's review of the LILCO plan.
Comments on the Shoreham Nuclear Power Station emergency plan authored by Dr. James Johnson. -
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A letter from Dr. Kai T. Erikson to Christopher M.
McMurray, dated May 13, 1982, regarding Dr. Erikson's review of the LILCO plan.
A letter from Christopher M. McMurray, Counsel to Suffolk County, to Dr. Kai Erikson, dated May 3, 1982, regarding a review of LILCO's plan.
A letter from Christopher M. McMurray, Counsel tc Suffolk County, to James H. Johnson, Jr., dated April 21, 1982, regarding a review of the LILCO plan.
A letter to Herbert Brown, Counsel to Suffolk County, from James H. Johnson, dated July 26, 1982, regarding a review of Suffolk County's plan.
Each of the Group II documents falls squarely within the work product doctrine. With one exception, they were prepared as part of the effort in formulating contentions in the April-June 1982 period. The documents authored by consultants were prepared at the express request of the County's attorneys to help the attorneys formulate emergency planning contentions. The documents authored by counsel request the consultants' assistance in these and related litigation activities. They reveal the attorneys' mental impressions.
The July 26 letter, which concerns possible additional witnesses, consists of a list of persons supplied by consultants for the attorneys' use in the litigation. To the extent these documents reflect the attorneys' mental impressions, they are subject to almost an absolute privilege. See In re Murphy, 560 F.2d 326, 336 (8th Cir.
1977). To the extent these documents are work product not containing mental impressions, LILCO cannot demonstrate the need to obtain these documents since the consultants who authored the documents (other than the attorneys' documents) all were made available _
for deposition by LILCO where their views regarding the LILCO plan could be examined. Accordingly, production of the Group II documents must be denied.
The final documents in the August 11 letter (Group III of the in camera submission) were withheld because they consist of intra-governmental ecmmunications containing advice,.
opinions, recommendations, or policy-making decisions which are subject to executive privilege. These documents are:
A document authored by Fred Finlayson titled
" Criteria for Establishing EPZ Boundaries" A memo to Frank Jones, Deputy County Executive, from Philip B. Herr, dated May 12, 1982, regarding radiological emergency response plan demographics.
Meeting notes authored by Peter Polk regarding review of LILCO on-site plan.
Meeting notes authored by Peter Polk, dated April 29, 1982, regarding Suffolk County radiological emergency response plan.
' All Steering Committee minutes.
A letter to Dr. Lee Kopelman, Executive Director, Nassaa/Suffolk Regional Planning Board, from Richard A. Strang, Director of Traffic Safety, dated' February 23, 1981, regarding legislation regarding emergency response planning.
The first, second, fourth and fifth documents reflect the preliminary views of the County's consultants and County officials concerning items for possible inclusion in the County plan. Such predecisional data reflecting the deliberative process of County government are subject to the privilege. While the privilege is not absolute, LILCO has demonstrated no basis to believe that it needs these documents, particularly since it was able to inquire during depositions into much of the County's planning effort. The third document should be withheld under the
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work product doctrine because it reflects counsel's request for
, consultants to perform tasks in connection with litigation. These requests were made at a meeting which is memorialized in the document. The final document reflects a request between County officials for legislation to be enacted. The request was not acted upon. However, such a request should be shielded to ensure the free flow of intragovernmental communications.
Turning to the August 24 letter, the bases for the privilege claims largely track the bases previously given.
Group IJ of the in camera submission concerns communications between attorneys and between attorneys and the client. These documents, August 24 letter, page 1, are:
Memorandum from Frank R. Jones, Deputy County Executive, to Herbert H. Brown, Esq., dated April 16, 1982, regarding supplements to March 29 draft emergency evacuation documents submitted to NRC.
A letter from Christopher M. McMurray to Patricia Dempsey, Esq., County Attorney's office, dated May 10, 1982 regarding scope of services for Kai Erikson and Jim Johnson.
These items are protected under the attorney-client privilege.
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Group V of the in camera submission (Aug. 24 letter, pp. 1-2) 47 concerns documents shielded by the work product doctrine. -
l These documents are:
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Letter from Philip B. Herr to Christopher McMurray, Attorney, dated July 6, 1982 regarding panel on behavior under stress.
4/ In the August 24 letter, the attorney-client privilege is also -
asserted. Subsequent review indicates that only the work product doctrine applies.
Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated July 15, 1982 regarding LILCO testimony on PRA.
Letter.from Christopher M. McMurray to Robert J. Budnitz, dated July 15, 1982 regarding LILCO testimony on PRA.
Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated July-13, 1982 regarding social survey.
Letter from Fred C. Finlayson to Christopher M. McMurray, dated July 1, 1982 regarding interaction with authors of SAI and PL&G reports.
Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated June 18, 1982 regarding documents pertaining to LILCO's consequence analysis.
These documents involve the consultants' views on litigation matters (such as possible witnesses) or attorneys' requests for consultants to review materials in the. litigation context. These are squarely within the work product doctrine and many involve attorneys' mental impressions. We note that Messrs. Herr, Finlayson, and Budnitz all were deposed by LILCO and thus were available to answer factual questions in areas which LILCO sought to probe.
Group VI of the in camera submission (Aug. 24 letter, pp. 2-3) are documents shielded by both the' attorney-client and intragovernmental communication privileges. These documents are:
Memorandum from Patricia A. Dempsey to Frank R. Jones, dated January 27, 1982 regarding the development of the County's radiological emergency response plan, interface between the County attorney's office and the Department of Planning, and the role of the legislature in the preparation of the County's plan.
Memorandum from Patricia A. Dempsey to Frank R. Jones, dated March 12, 1982
, regarding Judge Brenner's order that all parties produce any draft plans prepared for its emergency planning efforts.
Memorandum from Chris McMurray to Frank Jones, Chairman SCRERP Steering Committee, dated May 6, 1982 regarding the SCRERP personnel.
Letter from Peter A. Polk to Christopher M. McMurray, dated August 4, 1982 regarding establishment of EPZ boundaries.
These documents in each instance reflect attorney-client communications concerning ongoing legal services and processes or the predecisional deliberations of the County's planning I
effort. Such communications are privileged and LILCO has made no effort to demonstrate any need to overcome the privileges.
Finally, Group VII of the in camera submission (Aug. 24 letter, p. 3) concerns documents shielded by the intragovern-
- mental communication privilege. These documents are
Activity report by Kathleen Goode, Suffolk County Executive's Office, dated June 18, 1982 regarding meeting between PRC Voorhees and Department of Emergency Preparedness.
Memorandum from Charles R. Skinner to Frank Jones, Deputy County Execuitve, dated June 4 21, 1982 regarding public education about j SCRERP.
Memorandum from Charles R. Skinner to Frank Jones, Deputy County Executive, dated June 21, 1982 regarding meeting with Director of Fire Safety Ron Buckingham.
Activity report by Kathleen Goode, County Executive 's Of fice, dated June 4, 1982 regarding SCRERP Steering Committee meeting. .
Activity Report by Kathleen Goode, County Executive's Office, dated July 1, 1982 regarding meeting of Steering Committee.
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In each instance, these documents reflect the predecisional phase of the County's emergency planning efforts. In this phase, various options are'being considered by the County and work tasks are discussed. If such options and tasks are open to disclosure, the free flow of ideas may be seriously inhibited.
Thus, this is precisely the kind of situation -- particularly in the predecisional phase -- that requires the protection of the privilege.
For the foregoing reasons, Suffolk County respectfully urges that LILCO's motion be denied.
Respectfully submitted, David J. Gilmartin Patricia A. Dempsey Suffolk. County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 M<e. .
tl Herbert H. Brown Lawrence Coe Lanpher Cherif Sedky Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., 8th Floor Washington, D.C. 20036 Attorneys for Suffolk County Dated: August 31, 1982 1
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.h James N. Christman, Esq. .
Kathy E.B. McCleskey, Esq.
Hunton & Williams 707 East Main Street Richmond, Virginia 23212
Dear Jim and Kathy:
The following is a list of documents which are arguably relevant to your broad discovery, request, but which we are withholding on grounds that these documents fall under recognized privileges. As I stated to you by phone in the late afternoon on Monday, August 9, 1982, you did not receive this list earlier because I was receiving the documents from Suffolk County in phases, and felt that it would be more efficient for both sides to receive one document listing all materials we consider privileged, rather than a number of shorter lists.
- 1. The following documents are not subject to discovery because they fall within the attorney-client privilege or the executive privilege concerning intra-governmental communi -
cations and which might reveal advice, opinions or policy m.aking decisions within the Suffolk County government:
'emorandum from David J . Gilmar _n, C "nty Attorney to suffolk Cou.ty Le 'slators dated April 24, 81, conc *ning negotiations wi . LILCO regard ng the outstanding issues surroun 'ng ultimate op .ation of the Shore m Nuclear P wer Station.
Memorandum toNDavi' J. Gilmartin from Patricia Ag empsey, dated May 21, 1982 re.
- ding Ms. Dempsey's comments rega* in3 the issues and problems re ted to 'he County's preparatio of a radi ogical emergenc- response plan Memor ..dum to the members f the Hea' h Committee, Suffolk Cc'nty L .islature, from Patricia A. 'emesey,
'asistant County Attorney, dat ' '
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Jovember 19, 1981, regarding a repc t om Ms.'Dempse; regarding the six h s ipulation re Shoreham Nuclear P wer St tion.
A 1 *cer from Patricia A. Demp ey to all' uffelk County legislator dated Octob r 1 regarding the sixt stipul tion and settlement . Suffolk County ontentions regardi the Shoreham Nuclear ower Plant. Atta hed to this letter i a copy of the s'xth stipulation and a set lement of Suff ik County contentio. in draft form dated October 5, 1981.
Memorandum om Patr' ia A. Dempsey, Assistant Con ty At* rney, to Lee Kopelman, copies to Rob t Me nkle, David J.
Gilmartin, Wil iam J. Kent, and E. R. Riley regarding emerg n y planning services negotiated betwe n Cleveland Electric Illuminating Coy =ny in Lake County and PRC Voorhees' 'hv lvement in that effort.
- Memorandum t Patri ia A. Dempsey, Assistant Co nty At rney, from Robert C. Meunkle, dated Se tember 2, 1981,
.regarding chool_buil ings proposed to use as transfer poi ts in the event of an ev cuation of th EPZ around the SNPS.
Memora dum from David J. ilmartin, Suffo k County Attorney, Peter F.
Coha an, County Executive nd others, dat d March 18, 1982, regar ing the P1 .ning Department's emerge cy planning -
e'. orts and presentation of t' ose
. forts to the County executis .
A letter from Patricia A. Dempsey, Assistant County Attorney, to Robert C. Meunkle, dated February 3, 1982, regarding use of school buses and school -
building in case an evacuation is required.
.._- randum to Laura Palmer frc~
Patric. 3 Dempsey, Ase' -mant County Attorney, date' ra '- .ary ll, 1982, regarding c r.-sponce. from the Long Islard . 11 road regarding t. ^munty's
_ lological emergency response p m. .
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l letter from Patricia A. Dempsey, A istant County Attorney, to Rob t C.
Meu. le, dated January 25, 1982, regarding lette s receiving from school 'istricts regardrog the use of their s . col building nd buses.
A letter fr, Patricia '. Dempsey, Assistant Cou *y Atto .ey, to Robert C.
Meunkle, dated nu y 15, 1982, regarding materials relevan to the Shoreham Plant which were forwa e ' by MHB Technical Associates.
A letter fr m Patricia A Dempsey to Mr. Rober Meunkle , dated anuary 14, 1982, r arding securing co i es of repor on the Shoreham radio. gical -
emer,ency response plan and the ounty's in'_ntion to have a contention on a
" rticular issue.
A letter from Robert C. Meunkle to Patricia Dempsey, dated February 24, 1982, regarding school district participation
- during a radiological emergency.
etter to Robert C. Meunkle f Patrl Dempsey, dated vember 18, 1981, regarding -
_...ents be tween school distri . to pe.m use of school buses one event of a radici 3_ =
.-rgency.
A letter from Robert C. Meunkle to Patricia A. Dempsey, dated April 30, 1981, regarding legal documents necessary to guarantee availability of facilities, equipment and services required for an evacuation plan.
letter from David J. Gilmartin, Coun',
Atm ney, to Suffolk County Legis1x srs regardi County intervention 4 the Nuclear Pow - Station Lice -ing hearings. .
A letter from Patr.c A. Dempsey,
-Assistant Count' e. tor.. , to Mr. nichard A. Strang, - ed October z 1980, regarding the Cou ', s involvement in th choreham Nucin ; Licensing proceedings, anc review c' sILCO's emergency planning activitle .
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letter from Richard A. Strang to .
tricia A.- Dempsey, dated October 0, 1 80, regarding agreements betweer LILCO an the Wading River Fire Departm nt.
A 1 tter from Patricia A. Demps ,
Assi tant County Attorney, to M . Richard A. S rang, Deputy Commissioner Department of Tr nsportation, dated Octo r 28, 1980, regar 'ng a review of LILCO's activities in the area of emergency pla ning. -
A lette from Richard A. St ang, Deputy Commissi ner, Department o Transportation, to Ms. Pa Dempsey, dated Aay 7, 1980, regarding roposed legis ition by Assembly -
man Fink n radiologica emergency preparedne .
A letter fro Richard . Strang-to Patricia Dempsey, dat d May 7, 1980, regarding transportatio of ra oactive material in general and s' nt fu 1 in particular.
A letter from P tr' ia A. Dempsey to William Reagan, i ector, Department of Emergency Prepar ness, dated August 8, 1980, enclosing py of comments submitted regarding legis r thinks proposed act concerning emer en y response plans.
A letter from atri ia A. Dempsey to William E. Re gan, d ted August 12, 1980, regarding Su folk Cotpty's evacuation plans for t Shoreha Nuclear facility.
i A letter f om Patricia . Dempsey to William E Reagan, date ^ August 13, 1980, regarding a memo from th Federal Emergenc Management Age cy.
A lette to Patricia Demp y from the l Depart ent of Transportati n, dated Augus 18, 1980, regarding olicy and proce ures for review and a oroval by -
FEMA of emergency planning e forts.
A tter from Eugene R. Kelly Assistant Co nty Attorney, to Mr. Anthon Noto, d ted September 11, 1980, rega. ding a ur of the Shoreham facility f r
. embers of the legislature.
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A letter from Richard A. Strang, Deputy ,
Commissioner, Department of Transportation, to Patricia Dempsey, dated August 20, 1980, regarding time estimates for evacuation.
letter from Patricia A. Dempsey, A istant County Attorney, to Wi iam E. agan, Director, Emergency reparedness Depar ient, dated August 14, 80, regarding policy nd procedures for re iew and approval y FEMA of emerger y plans. -
A letter fro Patricia . Dempsey to Assembly Speak r Fink, ated August 5, 1980, offering mme s on the proposed radiological emer y preparedness act.
Memorandum from " trl ia A. Dempsey to .
David J. Gilmar in and illiam J. Kent, dated June 5, 981, _rega ing the contract between Suff 1k County and ILCO for preparatio of County radiol cical emergency response plan.
A lett from Howard E. Pachman, unty
_ Atto ey, to Messrs. Noto and Grant and Dr. .eldman, dated May 16, 1979, reg ding r ulating the operation of nuclear po r cilities.
- 2. The following documents are not discoverable because they were prepared by the County's attorneys or by the County's consultants for the use of the County's attorneys, in preparation for litigation of the emergency planning issues under consideration.
PRC Voorhees' notes on LILCO's emergency plan.
Memorandum to Dr. Edward P. Radford, from Chris McMurray, Counsel to Suffolk County, dated May 25, 1982, regarding Dr. Radford's review of the LILCO plan.
Comments on the Shoreham Nuclear Power Station emergency plan authored by Dr.
James Johnson.
A letter from Dr. Kai T. Erikson to Christopher M. McMurray, dated May 13, 1982, regarding Dr. Erikson's review of the LILCO plan.
~
A letter from Christopher M. McMurray, Counsel to Suffolk County, to Dr. Kai Erikson, dated May 3, 1982, regarding a review of LILCO's plan.
A letter from Christopher M. McMurray, Counsel to Suffolk County, to James H. Johnson, Jr., dated April 21, 1982, regarding a review of the LILCO plan.
A letter to Herbert Brown, Counsel to -
Suffolk County, from James H. Johnson, dated July 26, 1982, regarding a review of Suffolk County's plan.
- 3. The following documents are not discoverable because they consist of intra-governmental communications containing advice, opinions, recommendations, or policy making. decisions which are subject to executive privilege:
A document authored by Fred Finlayson titled " Criteria for Establishing EPZ Boundaries" A memo to Frank Jones, Deputy County
- Executive, from Philip B. Herr, dated May 12, 1982, regarding radiological emergency response plan demographics.
i Meeting notes authored by Peter Polk i regarding review of LILCO on-site plan.
Meeting notes authored by Peter Polk, dated April 29, 1982, regarding suffolk l County radiological emergency response plan.
l All Steering Committee' minutes.
A letter to Dr. Lee Kopelman, Executive Director, Nassau/Suffolk Regional Planning Board, from Richard A. Strang, Director of Traffic Safety, dated February 23, 1981, regarding legislation ~
regarding emergency response planning.
Please do not besitate to contact me should you have any questions regarding '.nis matter.
Yours truly, Aeo Cnristopher M. McMurrav 4
EmKPATRICK, LOCKHART, HrI2., CHRISTOPHER & PHImPs A Pasrrynnesay IncLenzso A Paorseasona ComponAnon l 1900 M STREET, N. W.
WAsursorox, D. C. 20006 taL:Frosz (aoep aan.rooO IN FITTsB11BoE cA u mF= August 24, 1982 n==^=a ' ~~ ". 3o =or * === =
TELEX 440000 RIFE U1 18o0 OIEGE 3CILDINO warran e Drnsc7 DIAL wrwaan FITTsacaOM.F3NysTLTANIA saaes (43)3es.ecoo (202) 452-8391 James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
Hunton & Williams 707 East Main Street Richmond, Virginia 23212
Dear Jim and Kathy:
The following is an additional list of documents which are arguably relevant to your discovery requests, but which .
we are withholding on grounds that these documents fall under recognized privileges. This list covers all documents received fr.om suffolk County since my last letter to you of August 11, 1982.
- 1. The following documents are not subject to discovery because they fall within the attorney-client privilege:
Memorandum f rom Frank R. Jones, Deputy County Executive, to Herbert H. Brown, Esq., dated April 16, 1982,
, regarding supplements to March 29 draft emergency evacuation documents submitted to NRC.
l A letter from Christopher M. McMurray l to Patricia Dempsey, Esq., County l Attorney's office, dated May 10, 1982, regarding scope of services for Kai Erikson and Jim Johnson.
- 2. The following documents are not subject to discovery ~
because they fall within the attorney-client privilege and the attorney work product privilege:
(
KraxPATRxcx, LocxuAar, HIn, CHRISTOPHER & PuIurPS James N. Christman, Esq.
Kathy E.3. McCleskey, Esq.
August 24, 1982 Page Two Letter from Philip B. Herr to Christopher McMurray, Attorney, dated July 6, 1982 regarding panel on behavior under stress.
Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated July 15, -
1982 regarding LILCO testimony on PRA.
Letter from Christopher M. McMurray to Robert J. Sudnitz, dated July 15, 1982 regarding LILCO testimony on PRA. .
Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated July 13, 1982 regarding social survey.
Letter from Fred C. Finlayson to Christopher M. McMurray, dated July 1, 1982 regarding interaction with authors of SAI and PL&G reports.
Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated June 18, 1982 regarding documents pertaining to LILCO's consequence analysis.
- 3. The following documents are not subject to discovery because they fall within the attorney-client privilege and the executive privilege concerning intra-governmental communications which might reveal advice, opinions or policy making decisions within the Suffolk County government:
Memorandum from Patricia A. Dempsey to Frank R. Jones, dated January 27, 1982 regarding the development of the County's radiological emergency response plan, interface between the County attorney's office and the Department ,
of Planning, and the role of the legislature in the preparation of the County's plan.
Memorandi.m from Patricia A. Dempsey to Frank R. Jones, dated March 12, 1982 regarding Judge Brenner's order
KraxPArascx, LocxxAar, HILL, CxRISTOPHER & ParttrPS James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
l August 24, 1982 Page Three that all parties produce any draft
^
plans prepared for its emergency planning efforts.
Memorandum from Chris McMurray to Frank Jones, Chairman SCRERP Steering Committee, dated May 6, 1982 regarding the SCRERP -
personnel.
Letter from Peter A. Tolk to Christopher M. McMurray, dated August 4, 1982 regarding establishment of EPZ boundaries.
- 4. The following documents are not subject to discovery because they fall within the executive privilege concerning intra-governmental communications which might reveal advice, opinions or policy-making decisions within the Suffolk County government:
Activity report by Kathleen Goode, Suffolk County Executive's Office, dated June 18, 1982 regarding meeting between PRC Voorhees and Department of Emergency Preparedness.
'3"4tv report by Charles'R. c i . . . ,
dated June ,
- ng public meetings "aaeor c by T,u W v
~.- D.
Memorandum from Charles R. Skinner to Frank Jones, Deputy County Executive, dated June 21, 1982 regarding public education about SCRERP.
Memorandum from Charles R. Skinner to Frank Jones, Deputy County Executive, dated June 21, 1982 regarding meeting with Director of Fire Safety Ron Buckingham.
Activity report by Kathleen Goode, County Executive's Office, dated June 4, 1982 regarding SCRIRP Steering Committee meeting.
Activity Report by Kathleen Goode, County Executive's Office, dated July 1, 1982 regarding meeting cf Steering Ccmmittee.
~.
4 a
KIREPATRICE, LOCKHART, HIr.I., CuRzSTOPHER & Pun.I.rPs James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
- August 24, 1982
- Page Four Please do not hesitate to contact me should you have any questions regarding this matter.
Yours truly,
/ us kf Christopher M. McMurray 4
P f
e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter Of )-
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)
) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceedings)
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of Response and Opposition Of Suffolk County To LILCO's Motion To Compel Production Of Documents were sent on August 31, 1982.by first class mail, except where otherwise noted, to the parties listed below.
Furthermore, one copy of an in camera submission was sent to Judge Brenner by hand.
Lawrence Brenner, Esq.* Ralph Shapiro, Esq.
Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street U.S. Nuclear Regulatory Commission .New York, New York 10016 Washington, D.C. 20555 Howard L. Blau, Esq.
Dr. James L. Carpenter
- 217 Newbridge Road Administrative Judge Hicksville, New York 11801 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission W. Taylor Reveley III, Esq.**
Washington, D.C. 20555 Hunton & Williams P.O. Box 1535 Mr. Peter A. Morris
- 707 East Main Street Administrative Judge Richmond, Virginia 23212 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger Washington, D.C. 20555 New York State Energy Office Agency Building 2 Edward M. Barrett, Esq. Empire State Plaza General Counsel Albany, New York 12223 Long Island Lighting Company -
250 Old Country Road Mineola, New York 11501 Stephen B. Latham, Esq.
Twomey, Latham & Shea Mr. Brian McCaffrey Attorneys at Law Long Island Lighting Company P.O. Box 398 175 East Old Country Road 33 West Second Street Hicksville, New York 11801 Riverhead, New York 11901
- By Hand **By Federal Express
l l
Marc W. Goldsmith Mr. Jeff Smith Energy Research Group, Inc. Shoreham Nuclear Power Station 400-1 Totten Pond Road P.O. Box 618 Waltham, Massachusetts 02154 North Country Road Wading River, New York 11792 Joel Blau, Esq.
New York Public Service Commission MHB Technical Associates The Governor Nelson A. Rockefeller 1723 Hamilton Avenue Building Suite K Empire State Plaza San Jose, California 95125 Albany, New York 12223 Hon. Peter Cohalan David H. Gilmartin, Esq. Suffolk County Executive Suffolk County Attorney County Executive / Legislative County Executive / Legislative Bldg. Building Veterans Memorial Highway Veterans Memorial Highway Hauppauge, New York 11788 Hauppauge, New York 11788 Atomic Safety and Licensing Ezra I. Bialik, Esq.
Board Panel Assistant Attorney General U.S. Nucletr Regulatory Commission Environmental Protection Bureau Washington, D.C. 20555 New York State Department of Law Docketing and Service Section* 2 World Trade Center Office of the Secretary New York, New York 10047 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and L'icensing Appeal Board Bernard M. Bordenick, Esq.* U.S. Nuclear Regulatory David A. Repka, Esq. Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Matthew J. Kelly, Esq.
Stuart Diamond Staff Counsel, New York Environment / Energy Writer State Public Service Comm.
NEWSDAY 3 Rockefeller Plaza Long Island, New York 11747 Albany, New York 12223 Cherif Sedky, Esq.
Kirkpatrick, Lockhart, Johnson & Hutchison 1500 Oliver Building l
Pittsbrugh, Pennsylvania 15222 n
Christopner M. McMurr'ay KIRKPATRICK, LOCKHART, HILI CHRISTOPHER & PHILLIPS -
Date: August 31, 1982 1900 M Street, NW, Suite 800 Washington, DC 20036 i
_