ML20080D574

Motion to Compel Expedited Production of Documents Re State of Ny Review of Offsite Radiological Emergency Response Plan.Certificate of Svc Encl

ML20080D574
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/06/1984
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080D538	List: ML20080D534 ML20080D550 ML20080D574
References
ISSUANCES-OL-3, NUDOCS 8402090163
Download: ML20080D574 (9)

Text

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. LILCO, February 6, 1984 c

S-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO'S MOTION TO COMPEL EXPEDITED PRODUCTION OF DOCUMENTS BY NEW YORK STATE LILCO has recently become aware of the existence of a doc-ument listing, prepared pursuant to a request by the Town of Southampton under the New York Freedom of Information Act, for documents relating to New York State's review of the offsite radiological emergency response plan for the Shoreham Nuclear Power Station. This listing was prepared at some time shortly prior to August 23, 1983. Pages 1 through 5 of the listing (down to paragraph 3 near the bottom of page 5) apparently de-scribe documents released pursuant to the Town of Southampton's New York FOIA request. Documents listed thereafter were withheld under various exemptions to the New York FOIA. LILCO possesses only pages 5 through 9 of the listing; the attached Request ~for Production of Documents and covering letter to 8402090163 840206 PDR ADOCK 05000322 PDR G

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L Richard J. Zahnleuter, Esq., both served today on the State of New York, attach the listing and describe its background in more detail.

These documents concern New York State's review of the Shoreham offsite emergency response plan. As such, they are obviously central to an understanding of New York State's posi-tion on all aspects of that plan, and thus central to the prep-aration by March 2, 1984 of testimony responsive to matters raised by New York State witnesses and to fruitful deposition discovery of New York State's witnesses scheduled for the peri-cd February 6-17.1/

1/ The documents, which are apparently from the period be-tween the spring of 1982 and the summer of 1983, relate to New York State's review of the version of the Shoreham offsite emergency plan prepared and submitted by LILCO to the New York DPC after Suffolk County withdrew from cooperation on emergency planning matters in the spring of 1982. In some respects this version of the plan is identical to Rev. O of the plan which i was submitted to this Board in the spring of 1983. In others, it is the direct lineal predecessor of Rev. O. Documents memo-rializing New York State's substantive review of this plan are unquestionably relevant to its view of is. sues in this case.

They more than satisfy the requirement of 9 2.740(a)(1) that "It is not ground for objection [to discovery] that the infor-mation sought will be inadmissible at the hearing if the infor-i mation sought appears reasonably calculated to lead to the dis-covery of admissible evidence." In addition, under

, circumstances similar to those now obtaining vis-a-vis New York l State, the prior Licensing Board granted LILCO, in the summer of 1982, extensive document and deposition discovery of Suffolk County's Shoreham emergency planning review process from the period during and before the spring of 1982. Suffolk County had objected to this discovery on a variety of grounds including attorney-client and attorney work product privileges, which the Board overruled. Long Island Lighting Company (Shoreham Nuclear Power Station), LBP-82-82, 16 NRC 1144 (1982).

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-s LILCO be:ame aware of this listing of documents, which was filed in a New York State administrative proceeding and is not a matter of record before the NRC, only within the last few weeks; and there would have been no purpose to pursuing it prior to New York State's entry into thic proceeding. When counsel for LILCO requested a copy of the listing and of all documents contained in it of New York State counsel, Mr.

Zahnleuter, last Friday, February 3, Mr. Zahnleuter stated that he had been the New York State attorney who had prepared the listing and indicated that he would not be willing to take any action with respect to it except pursuant to a written request.

He also indicated that New York State would not be inclined to turn over, voluntarily, any documents previously claimed to be exempted under the terms of the New York State Freedom of In-formation Act. The letter and request for production served this morning on the Staff of New York are attached.

On the basis of the February 3 conversation with Mr.

Zahnleuter, LILCO believes that New York State will not prompt-ly provide voluntarily the listing and the documents referred to in it. These documents are, as stated ~above, central to an understanding of the substantive merits of New York State's po-sition on the merits of the LILCO offsite emergency plan.

LILCO therefore requests that this Board enter an Order requiring New York State to provide LILCO forthwith with a copy

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of the complete listing of documents and a copy of each and every document in it, copying expenses to be borne by LILCO.

There should be no controversy about production of docu-ments preceding paragraph 3 on page 5 of the listing, since they have already been produced under the NY FOIA.

With respect to the documents not released under the NY FOIA, the listing excerpt to which LILCO has gained access de-scribed, at the bottom of page 5 and top of.page 6, the coding system used by the State of New York for withholding the vari-

ous documents not released. Each withheld document listed on pages 6 through 9 is labeled by one or more of those exemption classifications. For the Board's convenience, these classifi-cations are repeated here

1) "A" refers to inter-agency materials which are not:

(i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public, or (iii) final agency policy or determinations;

2) "B" refers to intra-agency material which are not:

(i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public, or

(iii) final agency policy or determinations;

3) "C" refers to material prepared for litigation;

4) "D" refers to attorney work product;

5) "E" refers to materials protected by attorney-client privilege.

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,m- . . . , - -- -,.. -., ,.m.. , - v .,.c.,-,,-- - ~ > - . . - .--

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Documents which were withheld under either categories "A" or "B" do not fall within any recognizable category of exemp-tion or. privilege under the Commission's Rules of Practice, and any documents marked only as withheld subject to those two categories should be ordered to be turned over forthwith.

Documents withheld on the basis of exemptions "C" (materi-

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al prepared in contemplation for litigation), "D" (attorney work product), and "E" (attorney-client privilege) also should be turned over immediately unless. withholding is justified on a document-by-document basis by New York State. LILCO requests that the Board require the State to provide it, forthwith, with any copies of documents which it wishes to withhold pursuant to categories "C", "D" or "E", along with a showing of good cause, as to each of them, why they should not be produced.

Accordingly, LILCO moves that this Board require New York State to provide LILCO with copies, forthwith, of the follow-ing: -

1. The compete document listing of which pages 5 through 9 have been obtained by LILCO;

2. All documents already produced for any person in re-sponse to the NY FOIA request to which the document listing re-sponds;

3. All documents withheld pursuant to the FOIA request only on the basis of categories "A" and/or "B"; and

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4. All documents withheld by New York State pursuant to  !

categories "C", "D" and "E", except those as to which New York i

State makes a document-by-document justification, sustained upon review by this Board, of the basis for the claimed privi-lege or exemption.

Because of the obvious importance of time in this matter, LILCO requests that the Board give this motion expedited con-sideration.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY l

By -

~ Donald P. Irwin HUNTON & WILLIAMS 707 East Main Street

! P.O. Box 1535 Richmond, Virginia 23212 DATED: February 6, 1984 i Attachments:

1. Letter, Donald P. Irwin to Richard J. Zahnleuter, February 6, 1984.

2. LILCO's Request for Expedited Production of Documents by New York State, February 6, 1984.

>" LILCO, Fsbruary 6, 1984

• CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-3 (Emergency Planning Proceeding)

I hereby certify that copies of a letter from Donald P.

Irwin to Richard J. Zahnleuter, Esq., LILCO'S MOTION FOR EXPE-DITED PRODUCTION OF DOCUMENTS and LILCO'S MOTION TO COMPEL EXPEDITED PRODUCTION OF DOCUMENTS BY NEW YORK STATE, all dated February 6, 1984, were served this date upon the following by first-class mail, postage prepaid, or (as ind'cated i by one as-terisk) by hand, or (as indicated by two asterisks) by telecopier, or (as indicated by three asterisks) by Federal Express.

James A. Laurenson,* Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555 Dr. Jerry R. Kline*

Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-Weet Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.

Bethesda, MD 20814 Bernard M. Bordenick, Esq.*

David A. Repka, Esq.

Mr. Frederick J. Shon* Edwin J. Reis, Esq.

Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission

, U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)

East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.

Bethesda, MD 20814 N . . .

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Gerald C. Crotty, Esq. Ben Wilos, Esq.

Counsel to the Governor Counsel to the Governor Executive Chamber Executive Chamber State Capitol State Capitol Albany, New York 12224 Albany, New York 12224 Eleanor L. Frucci, Esq.* Stewart M. Glass, Esq.***

Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U. S. Nuclear Regulatory 26 Federal Plaza', Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B. Latham, Esq.***

Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street David J. Gilmartin, Esq. P.O. Box 398 Attn: Patricia A. Dempsey, Esq. Riverhead, New York 11901 County Attorney Suffolk County Department Ralph Shapiro, Esq.***

of Law Cammer & Shapiro, P.C.

Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New. York 10016 Herbert H. Brown, Esq.** James Dougherty, Esq.***

Lawrence Coe Lanpher, Esq. 3045 Porter Street Christopher McMurray, Esq. Washington, D.C. 20008 Kirkpatrick, Lockhart, Hill Christophar & Phillips Howard L. Blau 8th Floor 217 Newbridge Road ~

1900 M Street, N.W. Hicksville, New York 11801 Washington, D.C. 20036 Jonathan D. Feinberg, Esq.

Mr. Marc W. Goldsmith New York State Energy Research Group Department of Public Service 4001 Totten Pond Road Three Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W. Perry, Esq.***

1723 Hamilton Avenue Associate General Counsel Suite K Federal Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.

Room 840 Washington, D.C. 20472

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Mr. Jay Dunkleberger Ms. Nora Bredes New York State Energy Office Executive Coordinator Agency Building 2 Shoreham Opponents' Coalition Empire State Plaza 195 East Main Street Albany, New York 12223 Smithtown, New York 11787 Fabian G. Palomino, Esq.** Richard J. Zahnleuter, Esq.**

Special Counsel to the Assistant to Special Counsel Governor to the Governor Executive Chamber, Room 299 State Capitol State Capitol Albany, New York 12224

. Albany, New York 12224 R -

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 6, 1984

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