ML20151X198
| ML20151X198 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/22/1988 |
| From: | Weiss E HAMPTON, NH, HARMON & WEISS, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20151X159 | List: |
| References | |
| OL, NUDOCS 8805040081 | |
| Download: ML20151X198 (35) | |
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. April 22, 19TgE0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 18 ant 28 4040 BEFORE THE ATOMIC SAFETY AND LICENSING BOA JCE Gi H OclAt Y MillNG 4 3EhyKt BRAH08
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In the Matter of )
Public Service Co. of New Hampshire, ) Docket No. 50-443-OL et al. ) 50-444-OL
) Offsite Emergency (Seabrook Station, Units 1 & 2) ) Planning Issues
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JOINT INTERVENORS' MOTION FOR DIRECTED CERTIFICATION I. INTRODUCTION The New England Coalition on Nuclear Pollution (NECNP), the Massachusetts Attorney General, the Seacoast Anti-Pollution League (SAPL) and the town of Hampton (hereafter "Intervenors")
jointly move for directed certification of three rulings of the Atomic Safety and Licensing Board, discussed in detail below.
While the rulings are procedural in the sense that they restricted discovery against FEMA, they have a pervasive effect
- o. the conduct of the litigation; they effectively and absolutely bar Intervenors from developing admissible evidence which would tend to show that FEMA's substantive testimony con-corning compliance of the New Hampshire emergency plan with gov-8805040081 800422 PDR ADOCK 05000443:
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erning standards is not worthy of any weight, much less the i
deference normally accorded to an agency in the exercise of its
, professional judgment. In addition, the Board's rulings are premised on a view of the scope of the issues which would limit Intervenors' inquiry to probing the facial plausibility of what FEMA says it relied upon in submitting its current testimony, while ignoring other facts - both technical and otherwise - which cannot fail to bear on the credibility and weight to be given the agency's position.
This is not a fishing expedition. As will be discussed in detail below, the Intervenors have developed information tending to support the conclusion that FEMA's dramatic reversal of March 14, 1987, far from being reached through a regular, deliberative process, was the culmination of a campaign of pressure which climaxed in a meeting on January 19, 1988 between high level officials of NRC and FEMA, during which FEMA was threatened by NRC with "war" if it failed to change its position on Seabrook '
and during which FEMA did "negotiate away" its position. The l evidence also tends to show that FEMA spent the next two months attempting to fashion a plausible rationale to support the predetermined conclusion which NRC had dictated to it, a
The rulings of the Board have barred Intervenors from r
developing or presenting evidence on these matters, although such ,
evidence manifestly bears heavily on the credibility and weight i
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. t to be accorded to FEMA's-conclusion that adequate protective measures have been provided for the beach population. Given the special status accorded FEMA's views both by NRC and a reviewing court, these rulings have in all likelihood predetermined the' outcome of the case. They have surely had a pervasive and unusual impact in this critical litigation. Public Service Co.
of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), A LAB-4 05, 5 NRC 1190 1192 (1977). The rulings and their rationale have profoundly restricted and determined the "very shape of the ongoing adjudication". Cleveland Electric Illumi-natina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, i
15 NRC 1105, 1113 (1982)
II. The Rulinas at Issue Are Clearly Erroneous A. The Board imoroperly invoked executive privilece to cut off inauirina into improper influence on FEMA and impermissible con-siderations by FEMA.
On September 11, 1987, FEMA filed written testimony in this proceeding presenting the agency's position that due to the par-ticular combination of factors specific to Seabrook, namely, lengthy evacuation times, lack of effective sheltering capability and the large transient beach population, thousands of people could be left exposed with no effective protective action "for as much as the entire duration" of a radioactive release. Current FEMA Position on Admitted Contentions on New Hampshire Plans for Seabrook, p. 39. Attached as Exhibit A hereto.
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Therefore, FEMA concluded: Until these issues are resolved, even if all the other inadequacies and deficiencies cited in the RAC reviews of the New Hampshire plans and the review of the exercise of these plans were to be corrected, FEMA would not be able to conclude that the New Hampshire state and local plans to protect the public in the event of an acci-dont at the Seabrook Nuclear Power Plant are adequate to ,
meet our regulatory standard that such plans ' adequately !
protect the public health and safety by providing reasonable assurance that appropriate protective measures can be taken offsite in the event of a Radiological emergency (see,44 CFR 350.5 (b)).'
On March 14, 1988, FEMA filed written testimony which con-cludes that the requirements of NUREG-0654/ FEMA Rep 1, Rev. I have been met with regard to the beach population within the Seabrook EPZ. Exhibit B hereto. The March 14 testimony simply refers to FEMA's previous testimony as "outdated". (p.3). It also appends and incorporates "to the extent that it is con-sistent", FEMA "Supplemental Testimony" of January 25, 1988.
While any effort to logically trace the change in FEMA's position by reading the three documents in sequence is frustrated by the fact that each one speaks to different issues than the preceding one,1 it is clear as a result of depositions taken by the Inter-venors that the intended effect of the March 14 testimony is to reverse the previous "negative" findings by FEMA regarding the adequacy of protection for the Seabrook beach population.
1 For example, while the September 11 testimony posits a set of site specific facts regarding the effect of an accident on the beach populaticn and cites 10CFR 350.5 (b) as the applicable standard, the March 14 testimony is addressed to the much nar-rower question of whether planning standards J.9 and J.10m have been met, and is based on no facts specific to Seabrook.
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i On March 16, 1988 Intervenors jointly noticed their inten-
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tion _to take the depositions of all of the witnesses on the March 4 and January 25 testimony, Joan Hock, William Cummings, JosephL Keller, Dave McLoughlin and Edward A. Thomas 2, as well as several key policy-makers at FEMA's Washington, DC Headquarters:
Craig Wingo, Chief, Field Support Division, Grant Peterson, Director,-Office of State and Local Programs, Julius W. Becton, Director, and Henry Vickers, Regic nal Administrator, Region I.
Based on information elicited during the depositions, Intervenors ,
orally expanded their request to include Richard Krimm, Assistant Associate Director for the Office of Natural and Technological Hazards. FEMA made Thomas, Hock, Cummings and Keller available, :
while refusing to provide the others for deposition.3 I
The deposition of Mr. Thomas was begun first and extended t over all or part of four days: March 23, 24 and April 4 and 5, r 1988. Mr. Thomas testified at length and in detail concerning the process by which each of the pieces of testimony filed by l FEMA thusfar in this proceeding was produced, the facts available ;
to and considered by FEMA at various stages, the substance of 2
Mr. Thomas, as Director, Natural and Technological Hazards Divi-sion, FEMA Region I, was the FEMA official with responsibility ;
, for review of the adequacy of emergency preparednes- for all New England nuclear plants, chairman of the RAC ani prime .
- sponsor of FEMA's earlier testimony. He is also a witness on the September 11, 1987 and January 25, 1988 FEMA testimony. l t
l 3 These objections, never put into writing, were argued and !
! sustained by conference calls on April 1, and April 5, 1988.
The rulings are discussed below.
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I meetings within FEMA at which FEMA's policy concerning the Seabrook' beach population was developed, the substance of con-versations and meetings between FEMA and NRC personnel and FEMA and representatives of the applicant.4 Mr. Thomas was permitted without significant objection from FEMA or NRC counsel-to lay out a detailed picture of his knowledge of how and why FEMA reached its original conclusion that the emergency plans for Seabrook do not provide adequate protection for the beach population, how and why the decision was reached to reverse that finding and how and why the present FEMA testimony was prepared.
On the third day of Mr. Thomas's deposition, he testified that, while he was in Washington during the week of January 19-22, 1988, to participate in the preparation of the January 25, FEMA testimony, he discovered that a series of meetings were being held between NRC and FEMA officials from which he was excluded. Substantial portions of the text of the deposition follow:
Q. At any time in the fall of '87 or early '88, did anybody tell you that anyone at the NRC, other than Mr. Turk or Mr. Bores, was disturbed about your position or your agency's position on sheltering at the Seabrook beaches?
A. Yes.
Q. What was that occasion or occasions?
A. Throughout the hearing, we had had or Attorney Flynn had had discussions with Attorney Turk about the nature of NRC's objections to the testimony that had been prefiled on the beach population, protection of the beach 4
Excerpts of the Thomas deposition are attached for the Appeal Board as Exhibit C. See e.g., pp 75-87,98-117, 136-144.
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population; and as I indicated, I had had personal conver- I sation with Attorney Turk in early January about what the !
NRC's objections were and what they thought FEMA should be 7 saying.
During the week or during that part of the week, which was the 19th of January through the 22nd of January, I was in Washington for witness preparation time; and at that point,.my understanding, based upon the follow-up to the previous week, that when I had pointed out that the rationale for changing the testimony that had been given at the January 5th meeting was not legally defensible and not in conformance with agency policy, I had understood we were back to where we were, and there were a series of meetings that I had with the attorneys that week, with Jo Flynn and Bill Cumming especially. We also had meetings with Grant Peterson, Generally, I can't give you much about what went on because I was excluded from the meetings that were held with the NRC, and the meetings that were held internally with FEMA to discuss the beach population, but I was told on the 19th by Attorney Flynn --
THE WITNESS: Shall I ao forward?
MR. FLYNN: Yes. A. -- that George Watson had j called. George had been at a meeting with a large meeting with the NRC. I understood that Vic Stello and I believe Attorney Turk were at this meeting, along with Grant Peter-son and Dave McLoughlin and Dick Krimm and his staff, and the report that was given to me was that we negotiated away, a negative finding at a meeting with Stello.
l I was then told additional information about that meeting which had, according to my information, taken place from one o' clock until 6:30 p.m. on the 19th to the effect that Stello had indicated that the NRC wouldn't5 engage in total war with FEMA if we didn't change our testimony on the beach population. Grant PeterLon had held up very well, but had agreed to make changes.
Later that week, on the 21st, Attorney Flynn had a conversation with me just as I was leaving --
MR. DIGNAN: What was that date, MR. Thomas?
THE WITNESS: 21st.
5 The transcript is incorrect. The witness stated "would", not "wouldn't".
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MR.DIGNAN: Thanks.
MR. FLYNN: Excuse me. What is the pending ques-MR. OLESKEY: The pending question is, did it document (sic) his attention at any time in the fall of '87, early-
'88, that anyone at the NRC, other than Turk or Bores, had expressed distress or unhappiness about the position either of FEMA on sheltering or of Mr. Thomas.
MR. FLYNN: I don't think this is responsive to the question. I think that completes the answer to the ques-tion. You may ao on.
Q. Were you told why you were not included in these meetings with the NRC in the week of January 19th?
A. No, I was never told.
Q. Did you have any understanding of why that occured?
A. I formulated an understanding based upon the cir-cumstances. I do not know. No one said to me "This is why."
Q. What was the understanding that you reached on your own?
A. The understanding I reached on my own was the agency wanted to change its posture on the beach population and was very irritated with me because every time they came up with a rationale, I pointed out problems with it.
Q. Were you aware of the meetings during the week of the 19th of January before they took place? Were you aware they were going to happen?
A. I was aware that there were meetings, and that's why I was in Washington. I wasn't aware that there was going -- I don't believe I was aware that there was going to be a meeting with the NRC that week, but I was aware that there were going to be policy level discussions that way.
Tnat's why I was in Washington.
Q. Well, you were there to have policy level discusions in your agency and the NRC would be meeting that week?
A. To discuss the beach population at Seabrook.
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1 4 i Q. As I recall, you previously testified that in about
-June of '87 when FEMA filed its own position on the Seabrook beaches, close coordination between the NRC on the i one hand and FEMA on the other as to your agency's position of New Hampshire beaches stopped. Do you recall testimony in substance along' chose lines?
A. Yes, I do.
Q. Is it your testimony now that sometime in early
'88, the two agencies began collaborating in some respects
- or other about FEMA's testimony and position on the beach?
MR. FLYNN: You can answer it.
A. I would like to go off the record for a minute.
(Witness confers with Mr. Flynn)
A. I would like to point out that I at least consider the word "collaboration" to be a pejorative, j Q. It wasn't intended in that fashion so substitute 4
any gerund you would like. Began working closely together on possible testimony by FEMA, it that makes you more com-fortable.
A. It does make me more comfortable and yes, it was my understanding in either late December, but certainly in early January, that the agencies were working very, very closely together in exchanging drafts of testimony and the like.
Q. Drafts of FEMA's testimony?
- A. Yes.
1 j Q. What was it that brought about this development, as you understood it?
A. I don't know what brought it about.
Q. Are the managers at FEMA concerned or afraid of the NRC's position vis-a-vis FEMA in some respects as you've obse rved it?
MR. FLYNN: I object. I don't see how this wit- ness can have personal knowledge of how the FEMA managers feel about NRC.
. i MR. OLESKEY: He can observe their conduct and he can listen to what they say. That will be two good ways to go about it.
MR. FLYNN: Well, I've noted the objection, but the witness may answer.
A. I've testified previously that Mr. Krimm has indi-cated to me that if FEMA takes a position that NRC dis-agrees with, that the NRC will take recourse to White Housa contacts to resolve any dispute, and the indication was that FEMA loses on those. Beyond that, I guess I would have to say to gave a truthful answer that it is a subject of common discussion within FEMA that we certainly pay very, very close attention to what the NRC says Q. Did you make notes of the conversation you had in which the NRC FEMA meeting of the 19th of January 1988 was related to you?
A. I did.
Q. Do you have those notes here?
A. I do.
Q. All right.
MR. OLESKEY: Could we have those produced?
MR. FLYNN: I will look at them.
MR. OLESKEY: Jo, do you have a response?
MR. FLYNN: Yes.
MR. DIGNAN: May the record reflect we were a little delayed in beginning because it's my understanding that Mr.
Bachus was meeting with the press.
MR. OLESKEY: Do you have a response, Jo?
MR. FLYNN: Yes, I do. I've examined the notes which you have asked the witness for, and I decline to offer them to you at this time because they reflect representations that were made by counsel to the witness, and I assert a privilege over those communications.
MR. OLESKEY: You will agree with me that the wit-ness has made a number of statements in three days of
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deposition based on communications to him by FEMA counsel, will you not?
MR. FLYNN: That's true.
MR. OLESKEY: But you feel you can now invoke, I guess, it's the attorney-client privilege in connection with this action; is that right?'
MR. FLYNN: That's what I'm doing, yes.
MR. OLESKEY: And notwithstanding the fact that he's already testified to at least a portion of the substance of what was communicated?
MR. FLYNN: That's right. I don't take the view that having once waived the privilege in one context or as to a part of the gvidence that it is waived at all times or in all contexts .
As can be seen, FEMA counsel knowingly permitted the witness to testify to what he had been told by Mr. Flynn about the sub-stance of these meetings, which included, that Mr. Stello had indicated that NRC would engage in "total war" against FEMA 1 unless it changed its tes*.imony, that Grant Peterson had "held up very well, but had agreed to make changes" and that FEMA had l "negotiated away a negativo finding" at the meeting with Stello.7 The first objection FEMA interposed was to the production of Thomas's contemporaneous notes of what he was told of these meet-ings and the ground asserted was attorney-client privilege, on the basis that the notes reflected communications between FEMA counsel Flynn and the witness. The notes covered precisely the same conversations which the witness had just testified to.
6 Thomas deposition f p. 3 3-61.
7 Id, p.3 3-51.
- a. y Further questioning elicited the fact that Mr. Thomas had 1 also discussed the January 19 meeting between NRC and FEMA with Mr. Cumning, one of the witnesses to both the January 25 and March 14 testimony8 . While agreeing that it was "belated", FEMA counsel objected to any testimony regarding this conversation, also asserting attorney-client privilege.9 A few moments later, Mr. Flynn asserted different grounds for his objection, for the first time arguing that the questions were beyond the appropriate scope of discovery:
I think its fair of you to question why it is that I am i;
now objecting to a subject matter which appears to be i
very closely related to other subject matters that have not been objected to in the past. The reason for that is in part what I stated earlier today. I believe that we have some additional guidance from the Board about l'
what it perceives the appropriate scope of discovery to be and one of the areas that the Board specifically i mentioned was contacts by other agencies. Now, I will 4
admit very candidly that my objection should have come half and hour ago, but it didn't become clear to me, at least until the witness was well into his description of the meeting, that the source of what he was saying was FEMA counsel, so that is m explanation for why I'm assertingabelatedobjection.{O FEMA counsel then stated that he would object, citing j attorney-client privilege, to any further questioning regarding i
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! 1d. at 3-62.
9 1d. at 3-62.
10 14. at 3 3-68.
conversations between himself and Mr. Thomas related to the NRC/ FEMA meeting of January 19.11 On the morning of April 5, 1988, a conference call was held with the Board and the parties to address the obj .
tions raised by FEMA counsel. FEMA counsel this time asserted that his pri-mary objection went to the scope of discovery. The following was the initial colloquy:
MR. FLYNN: Yes, Your Honor. The basic issue in my mind is the scope of discovery. I have been very cautious in making objections. And until yesterday with one excep-tion, I have not instructed the witness not to answer ques-tions, and I have not refused to produce documents.
But where the line of questioning was going was directly into communications with othrr agencies. Tnat is obvious from the testimony that Mr. Oleskey referred to.
And the issue of attorney-client privilege is secondary, although I insist that it is important.
I had in mind when I made the objection and refused to produce the document the conversation that we had on April 1st, the conference call. And I had understood you to say, although it was not by way of a ruling, that the discovery should be focused, that the deposition should concentrate on whether FEMA had legal, technical, and policy reasons for the position that it adopted.
And I also understood you to say that calls from the White House, as an example, were not within your concept of a properly focused discovery effort. '. hat, I submit, is the issue here JUDGE SMITH: Well, my comment about calls from the White House and other potential influences upon Mr. Peter-son's action in approving FEMA's corrent position assumed that Mr. Peterson would be saying that he acted solely upon the advise of his staff, and ignored other influences.
The premise of our discussion was that Mr. Peterson approved a position set out in the testimony based upon 11 ld, at 3-69.
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advice out thattestimony in the he received and from hisother for no staffreason.
and the reasons set If in fact there were other reasons under1vina their Dolicy decision, other influences underlyina the policy decision. that miaht be another matter.
MR. FLYNN: Mr. Thomas was not at the meeting. We are talking about double or triple hearsay.
JUDGE SMITH: Well, all right. That is another prob-lem, yes, I admit.
But let us see if we can resolve now the executive privilege consideration with respect to this information.
MR. FLYNN: Did you wish further argument on the execu-tive privilege?
JUDGE MITH: Is it FEMA's position today. I mean posi-tion with resrect to this conference, that FEMA's position was not influenced by any statcment by Mr. Stello?
MR. FLYNN: I have not discussed that directly with Mr.
Peterson.
his position I would have to say that I believe that would be But obviously, other people would draw other inferences from the testimony which was elicited vesterday.
JUDGE SMITH: So I do not believe that we are able to decide this issue now on executive orivilece arounds. You could move on to your other grounds, attorney client. You first raised it as to scope.
MR. FLYNN: Yes.
JUDGE SMITH: I do not think that we can resolve it as to scope, if by scope you are referring to our discussion as i to the bounds of the executive privilege. I do not think that scope as to relevancy is going to resolve the problem.
But we have not discussed triple hearsay, reliability, and attorney--client.12 However, after having indicated in the discussion above that a claim of executive (or deliberative) privilege would not i
succeed at this stage, given the existence of evidence of other improper influences on FFMA, the Board later came back to it, f
l 12 Transcript emphasis added.
of conference call of April 5,1988, pp. 9919-9921, l
asserting that "strong" advice is the very type of advice that is protected by the executive privilege,13 and that the privilege should apply to the NRC/ FEMA meeting.14 The Board acknowledged, however, that evidence regarding the meeting might cast doubt on FEMA's credibility:
But it seems to me that the Intervenors have come up with some reason to attack the representation that Mr. Peterson made his policy decision based solely upon the advice of his staff and the information contained in the testimony.15 The Board went on to state that the only sense in which it considered evidence of external influence to be at all relevant is as it might undermine the rebu'c table presumption accorded to FEMA's testimony by NRC rules:16 So where we are coming out is the more we hear the less likely we are to look at anything FEMA is doing in this case other than the legal and technical bases as having an influence.
Now what does that do to the Intervenors who are pound-ing on this?
The most you can expect, the most that you can hope to win in your discovery dispute is to diminish the executive privilege -- I mean the rebuttable presumption is entitled to. And that's why we say that your discovery needs are not that great because we don't give that much weight to the rebuttable presumption.
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i 13 Id at 9939.
l 14 74, 1f.14. at 9940, 16 1d. at 9940-9943. The Board also stated that FEMA has "a l certain amount of immunity" from discovery as a non-party, 14 l at 9942.
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Mr. Dignan has a right to that if he is otherwise entitled to it, and we -- I guess we understand from his comment of Friday that he does not want rebuttable presump-tion swept aside.
Well, we ..re inclined to sweep it aside because we have a situation here which we already know about. which we already know about on the evidentiary record and from the discovery proceedings and which our greatest focus is going to be on the technical bases for it, for FEMA's position, and the legal analysis. And it is a position that we took
, from the very first day of this hearing that we will be
- impressed by the quality of the rationale and the quality of the technical basis, and not much impressed in a contested hearing wnere we have the responsibility of the policy i rebuttable presumption.17 Substantial argument followed, with Intervenors pointing out inter alia, 1) that the Board lacks authority to pre-emptively "waive" the rebuttable presumptionl8 2) that any claim of privilege had surely been waived 19 3) that testimony tending to show that FEMA's substantive position was fabricated after-the-fact to justify predetermined conclusions would bear on the weight to be given the agency's evidence in comparison with evi-dence to be presented by Intervenors, irrespective of whether the rebuttable presumption holds.20 As to the last point, the Board held that Intervenors would have the opportunity to attack the credibility of only the wit-ness's offered by FEMA (Tr. 9957-9958).
17 1d. at 9942-9943.
18 1d. at 9945 ff.
19 1d. at 9948-9951. Note that NRC's attorney did not assert the privilege and, in fact aserted that Mr. Thomas's testimony concerning the January 19 meeting was incorrect. Id. at 9961-9963.
20 1d. at 9954-9960.
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The Board's ruling was on grounds of executive privilege as follows:
Well our ruling so far as what it is, we have not seen
( extraneous information of such a degree to inquire into J
those meetings as it relates to the testimony offered by FEMA in its March version. We will wait and see what hap-pens when you cross examine them or what else you come up with, but we have not even taking Mr. Thomas' version of it, which we agree that we had problams with but'even taking his version of it, I do not see a statement that might arise in a conference of that nature as being sufficient to destroy the executive privilege.
I mean it is the nature, it is the very nature, of Executive Privilege to allow people to sit around and speak in strong terms and not have it come out later on to defeat them. It's the future chilling effect that we're concerned about. Not the present one in this case because what is said is already said.21 The Board's ruling is incorrect on seireral grounds. First, the deliberative process is not an absolute privilege; a claim of privilege cannot stand when there is evidence that extraneous influences were brought to bear in the agency's decision-making processes. If there is a prima facie showing of impropriety, the decision-making process may be opened for scrutiny. McGoldrick
- v. Koch, 110 F.R.D. 153 (S.D.N.Y. 1984). As discussed cbove, the deposition of Mr. Thomas elicited evidence of a meeting where NRC's Executive Director vowed war on FEMA unless it changed its position and that the agency, at that meeting,"negotiated away" its position on Seabrook. This is sufficient evidence of extraneous and improper influence to justify overcoming a claim of privilege.
21 1d. at 9962.
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In Eun Oil Co. v. U.S., 514 F.2d 1020 (Ct.Cl. 1975),
plaintiff sought White House papers in connection with litigation claiming that the federal government had improperly refused to permit installation of an oil-drilling platform within an off-shore tract leased by plaintiff. Plaintiff's purpose was to establish who made the decision to deny its application. Id. at 1023. They claimed that, as a matter of law, only the Secretary of the Interior could, for environmental reasons, refuse the permit, but that the Secretary had, in fact, only announced a decision actually made by the President. Id. at 1024-1025.
Plaintiffs sought discovery, therefore, of four briefing papers and memoranda prepared for the President for use in decision-making on the oil drilling issue. Id. at 1022.
Former President Nixon interposed an objection of executive privilege, asserting that the potential chill on free expression of opinion by Presidential aides outweighed any interest of a civil litigant. Id. In support, the government's position was that a presumptive privilege covers such presidential communica-tions. Id.
The court held that the claim of privilege was overridden by the plaintiff's need for the information:
We do not know whether, as plaintiffs hope, they will show who refused the application for Platform Henry, or why
it was refused. But, it is reasonably clear that they have a need to show the foregoing. These papers might well lead to the discovery of admissible evidence and are suggestively relevant to the subject matter of this action- Plaintiffs seem to believe that they will ultimately be able to prove that the President or someorie on his White House staff turned their aoolication down and did so for impermissible extraneous, political. or other reasons which they think if shown would make their case. They are entitled to try to show this, and a ceneralized claim of orivileae...cannot prevail acainst the plaintiffs' need to develoo the facts by result to discoverv.
Id. at 1025, (emphasis added) The documents in question were sent for in camera inspection by the trial judge based on the ruling that the plaintiffs had made a sufficient showing of need to overcome the presumption of privilege.
The case is highly pertinent because of the marked similarity of both the nature of the claim of privilege and the nature of the asserted need by the party seeking discovery. In short, the court held that the need to prove precisely the same sort of claim which Intervenors seek to pursue here - that improper influences led to the decision in question - was suffi-cient to overcome a generalized privilege claim. Moreover, the Intervenors have already adduced enough about the meeting in j question to present more than a hope that further discovery will
! lead to admissible evidence in this regard. Surely, if Presiden-tial privilege falls in such circumstances, NRC's claim of privilege cannot stand.
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It cannot be maintained that evidence of extraneous, impermissible or political influences in FEMA is not relevant to
this proceeding. In this regard, the Board misapprehended the issues:
Let's assume just for the purpose of arguing that FEMA's decision-makers have decided to change their posi-tion for inappropriate reasons, for corrupt reasons, for the purpose of argument. But we have witnesses who are not party to any such inappropriate decisionmaking, whose testimony is worthy of belief as much as if they had been third-party witnesses.
You have had an opportunity to depose those people and discovery (sic) their bases, and you will have an opportunity to cross-examine them.
Tr. 9944. The Board appears to believe that the best the Intervenors can hope to achieve is to undermine the rebuttable presumption, so that if the Board indicates in advance that it is not inclined to attach importance to the presumption, the Inter-venors have achieved all they are entitled to.22 However, regardless of whether any presumption operates, the fact is that PEMA's current testimony, in combination with that of the applicant, will be weighed against the Intervenors' testimony on the subject. To the degree that the Intervenors can show that FEMA's position is the result of improper influences and/or that the bases for its reversal were formulated after the fact to jus-tify a predetermined conclusion, such evidence would substan-tially discount the weight to be given FEMA's position. Inter-venors are entitled to attempt to establish facts tending to show th.t their experts' views and Mr. Thomas's views are more worthy l
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- 14. at 9944-9945.
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of weight than are FEMA's. As Dr. Hock remarked during her deposition, these are matters of "professional judgment".23s In this regard, it is the credibility of the acency that is at issue, not the individual credibility of the three proferred witnesses, particularly since none of them had more than a tangential role in the Seabrook case until very recently 24 and 4
they were selected to present the evidence after it was substan-tially complete.25 Moreover, even assuming that the Board would allow questioning as to extraneous influences at the hearing, cross-examining is no substitute for discovery. The Intervenors cannot be required to put their questions for the first time at the hearings, nor be precluded from pursuing this matter through duly noticed depositions, in order to identify witnesses to sub-poena.
It should also be noted that the Board's current position is at odds with the position it took earlier, when FEMA's conclusion was that the plans did not provide adequate protection for the beach population. Counsel for the applicant was permitted to 23 Deposition of Joan Hock, pp. 63-64.
Excerpts attached as Exhibit 0 hereto.
24 Ms. Hock came to FEMA in December, 1987 with no prior experi-ence in emergency planning and a "management decision" was made on March 4 to attach her name to the testimony. Hock Deposition at 1-17, 20-21, 32-33. She testified that Keller "came in" at the beginning of March. Id. at 20-21.
25 The testimony was substantially complete on March 4, 1988. Id.
at 35.
l conduct a "voir dire" of Mr. Thomas on October 7, 1987, where questions were asked about the deliberative processes of FEMA's Regional Assistance Committee (RAC). FEMA's counsel indicated that FEMA would not assert privilege. Tr. 3120. The witness expressed reluctance to discuss the positions of individual mem-bers of the RAC, to which the Board responded:
JUDGE SMITH: That is a very good point, and that is the fundamental reason why there is what they call a deliberative process privilege or the Executive Privilege.
But in this instance it is not being raised by those whom have standing to do it, and in the second place, this is something that FEMA was inevitably going to have to face anyway, because it is not a pure deliberative process in the sense that you are taking credit for this deliberative pro-cess, or this collegial process as you present your find-ings.
And you cannot, on the one hand, and you are not attemptina to, assert a deliberative process orivilece, and on the other hand, say, here is our oroduct, as the colden result of deliberative Drocess, either without havina that Drocess Drobed.
So, I was pretty much aware of the problem of what you are giving up, when you do that, but I think that it had to come sooner or later anyway.
- Tr 3122, emphasis added. At a later date, when Mr. Thomas l was questioned further about the details of the RAC meeting on
- Seabrook, FEMA Counsel raised a relevance objection to the ques-tion of whether the RAC had taken a vote. The Board overruled the objection, stating
...I don't understand how you can come here and tell us that FEMA's finding, which is entitled to a rebuttable presumption by this Board, which, in turn, is based upon a RAC review, collegial review, and then tell us that the pro-cess of that collegial review is irrelevant. You had better explain that.
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Tr. 5117. FEMA Counsel conceded the relevance of the process, and more lengthy questioning was permitted.
If the process by which FEMA reached its decision is to be open to scrutiny when its decision was favorable to the Inter-venors, the same rule should apply when the decision goes the other way. This is particularly true as it relates to communica-tions with the NRC, since FEMA's current testimony is explicitly based on its deference to NRC's interpretation of the emergency preparedness requirements. See Testimony of Dr. Joan Hock, Joseph H. Keller and William R.Cumming on Behalf of the Federal Emergency Management Agency on Sheltering / Beach Population Issues, March 14, 1988, Exhibit B, pp. 2-7.
Lastly, even if privilege could be asserted here, it has surely been waived. All of the FEMA witnesses were deposed at length over days without objection, about the substance of numerous meetings and communications with NRC.26 As noted above, FEMA's direct testimony itself purports to be fundamentally based on deference to NRC and its evolving understanding of NRC's posi-tion. Finally, the substance of the January 19 meeting was itself discussed by Mr. Thomas after he asked FEMA's Counsel if he should continue and was instructed by counsel to do so.27 The 26 Soo n. 41, intra. See also e.g. Thomas deposition at 2 2-34 and 3 3-51; Deposition of William Root Cumming at 44-48, 27 Ex.C, p. 3-50. See also 3-52, 3-55, 3-59.
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objection only came when production of the witness's notes was requested, and after a break.28 It is at this point far too late to claim that any communications with NRC are privileged, much less that a meeting already discussed can be protected.
With regard to Mr. Cumming, an assertion of privilege is particularly indefensible. Even before Mr. Cumming's deposition, FEMA's Counsel explained that, since Cumming had served as one of FEMA's attorneys prior to becoming an agenvi witness on the Janu-ary 25 and March 14 testimony, but wished to te "free to go into any matters that may have been communicated to him in his prior capacity as counsel", Mr. Cumming sought a commitment from each party involved that no assertion of confidentiality would be asserted.29 In connection with this request, FEMA made an explicit, unlimited on-the-record waiver:
MR. CUMMING: And FEMA has waived any objections basgd on privilege, to any testimony or answers I may give.
In addition, FEMA Counsel noted that the conversations included within this waiver were "conversations or memoranda with people inside of FEMA, also other government agencies; notably, the Nuclear Reculatory Commission."31 NRC Counsel was present, 28 14. p. 3-60.
29 Deposition of Edward A. Thomas, Exhibit C, p. 2-4 -
2-10.
30 1d. at 2-9.
31 1d. at 2-5, emphasis added.
sought clarification as to the absolute nature of the waiver and asserted no privilege as to these communications nor any objec-tion to their disclosure.32 As attorney for FEMA, Mr. Flynn explicitly waived privilege regarding "any communications made to Mr. Cumming before January 25.n33 No limitation whatever was made. FEMA cannot at this late date attempt to cloak Cumming's communications in privilege.
Moreover, it would seem to be more than coincidence that the privilege was only asserted here after damaging information was elicited. If FEMA's goal was the protection of its deliberative process or its communications with NRC, it was obliged to raise the issue days earlier. It may not choose to permit that dis-closure which is consistent with its litigative interests and object to that which is damaging.
- Hz The Board's Rulina Preventina Intervenors from DeDosina FEMA Officials Was Clearly Erroneous As noted above, Intervenors jointly noticed their intention to take the depositions of a number of FEMA personnel involved in l
the formulation of FEMA's position on the Seabrook beach popula-tion: David McLoughlin, Deputy Associate Director, Office of l
State and Local Programs, Craig Wingo,Cheif, Field Support Divi-l 32
- 14. at 2-11.
33
- 14. at 2-6 i
sion, Henry Vickers, Director of Region 1, Grant Peterson, Direc-tor, Office of State and Local Programs and Julius W. Becton, Jr., Director of FEMA.
No written objection was ever filed by FEMA to producing these witnesses for deposition. FEMA Counsel indicated his will-ingness to produce Thomas, Hock, Keller and cumming, and it was agreed among the parties that he could make his written objec-tions to producing the remainder of the witnesses after those depositions were finished. The date agreed upon by the parties for this was April 7.
On April 1, the Intervenors arranged a conference call with the Board to apprise the Board of the progress made in discovery and to draw the Board's attention to the likely need for relief from outstanding deadlines due to FEMA's intention to resist producing the remaining witnesses for deposition and the con-sequent need for briefing o.id a decision to resolve that dispute.
Intervenors had essentially been involved almost full-time in discovery since the filing of the FEMA testimony and had not had an opportunity to begin preparing a direct case to meet FEMA's new position.
Although the parties did not intend or expect the April 1 conference call to get into the merits of the dispute over depos-ing further FEMA decision-makers, the Board was interested in
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exploring the substance of the issue. There was extensive dis-cussion in particular about whether Mr. Peterson could submit an affidavit or be provided for Board-supervised questioning instead of a deposition. In illustrating Mr. Peterson's key role in the FEMA policy reversal on Seabrook, the Intervenors discussed the I extensive testimony they had already elicited regarding a meeting in Washington on March 4, 1988, attended by at least Grant Peter-son, Joe Flynn, Bill Cumming, Henry Vickers, Joan Hock, Ed Thomas and Craig Wingo.34 At that meeting, Mr. Peterson made the final decision on what the FEMA position would be, based upon, a draft of FEMA's current testimony, and selected the witnesses to pres-ent it. The Board reminded FEMA Counsel that he might have claimed privilege as to the March 4 meeting After FEMA Counsel noted that this was already a matter of record, the Board remarked that FEMA may have waived its deliberative process privilege.35 No resolution was reached that day, although the Board indicated that it considered the Intervenors right to ques-tion FEMA decision-makers to be tied to the rebuttable presump-tion accorded FEMA's views under NRC rules.
After the Board's April 5 ruling prohibiting further questioning of Mr. Thomas about the January 19, 1988 FEMA /NRC meeting, the Intervenors asked the Board to givc its ruling on 34 0.g., Deposition of Joan Hock, pp 16, 33-45.
35 Tr. 9879.
e the remaining deposition notices.36 While the transcript does not unequivocally indicate that a ruling was made, it is clear from the context that, with the exception of Mr. McLaughlin, the depositions were denied on the ground that they would invade FEMA's deliberative process.37 Since Mr. McLaughlin was a wit-ness on the January 25 Supplemental Testimony, which is incorporated into FEMA's March 14 testimony, the same reasoning could not prevent his deposition. The Board suggested that FEMA could avoid this difficulty if the January 25 supplemental testimony were struck.38 FEMA Counsel indicated that he appreciated the advice 39 and later announced that FEMA would pre-fer to withdraw the supplemental testimony rather than submit Mr.
McLaughlin to deposition.40 We have argued above that the ruling barring discovery regarding the January 19 NRC/ FEMA meeting on deliberative process privilege grounds was clearly erroneous. The ruling prohibiting all further depositions was even more sweeping and less justified. The first ruling focused on one meeting only and was based on the Board's desire to protect "strong advice" given by NRC to FEMA. By contrast, this second ruling prohibits all 36 Tr. 9968 ff.
37 Sge Tr. 9970 ff.
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38 Tr. 9963.
39 y4, 40 Tr. 9971.
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I questioning whatsoever of a whole set of witnesses and is based more generally on protecting FEMA's internal deliberations. If the earlier ruling cannot stand, the second is perforce erroneous.
FEMA witnesses testified literally for days about their internal agency deliberations. With the possible exception of General Becton, each of the persons listed as a deponent played a key. role in considering whether the New Hampshire plans provide adequate protection for the Seabrook beach population both as the agency reached its iTune 4 and September 11 positions and also as it cycled through consideration of a variety of rationales for approving the plans, including asserted low accident probability, asserted low dose consequences due to wind patterns, asserted special features of the Seabrook containment and the supposed "benign" nature cf a release.41 The range and scope of these depositions preclude FEMA from now asserting any privilege. Even if the agency could have maintained the confidentiality of its internal deliberative pro-cesses through asserting an objection, there is no longer any confidentiality remaining and privilege has clearly been waived.
41 E.g. Deposition of Edward A. Thomas at 2) 2 2-41, 2 2-96, 2-100 104, 3-11, 3 3-23, 3 3-54, 3-90, 3 i 3-97, 3-106 140, 4 4-11, 4 4-29, 4 4-45, 4-49 56, 4 4-67.
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In addition, there is evidence that a variety of factors other than the "legal" and "technical" grounds asserted on the face of the testimony were in fact highly influential on the decision-makers but were not mentioned because they could not be defended either factually or conflicted with the prevailing assumptions governing emergency planning.42 Intervenors should be entitled to fully explore the degree to which inaccurate analyses or impermissible considerations drove FEMA's decisions to reverse the June and September position and to formulate the ;
e current testimony. Such evidence would tend to undermine the credibility of the current FEMA testimony and is therefore relevant.
In this regard, it is no answer to tell the Intervenors, as the Board did, that they will have the opportunity to question the FEMA panel.43 The Intervenors are not limited to the wit-nesses which FEMA chooses to identify; we intend to subpoena others as part of the Intervenors' direct case. Taken as a I
whole, the depositions support the conclusion that, rather than l
the proferred witnesses, Edward Thomas, David McLaughlin and f Robert Wilkerson were the key policy-makers up to the filing of i
l the September 11, FEMA position, and that Msgrs. McLaughlin, Wingo, Krimm and Peterson played the key roles within FEMA in the l
42 E22 note 42, supra.
43 Tr. 9957-9958, 9969.
agency's reversal of that position.44 Ms. Hock, who came to FEMA in December, 1987 without any experience in emergency planning or in the Seabrook case was essentially selected to be a witness in this proceeding as a "management" decision, on March 4, 1987.45 Ms. Hock has neither the knowledge nor the institutional memory to answer questions concerning the basis for FEMA's reversal.46 Ms. Hock was selected by FEMA's attorneys with Mr. Peterson's concurrence to present the FEMA policy despite "some concern that it would be useful to have someone with a longer institutional memory that three months."47 Indeed, it is a plausible inference that these witnesses were chosen at least partially because their lack of prior contact with the Seabrook case would frustrate those desiring to develop a record on the inconsistencies in FEMA's changing positions and the reasons for the reversal.
III. The Rulinas Have a Pervasive Effect on the Proceedina We are aware that the Appeal Board is reluctant to oxercise its authority to undertake interlocutory review, particularly in the case of discovery rulings. However, these rulings have had the 44 Egg note 42, supra.
45 See Deposition of Joan Hock at 1-10, 32.
46 E g. Id. at 12-14, 2 '/ - 2 8 , 38-39, 66-72, 2-49, 2-59-63.
47 1d. at 41-43.
e " e offect of absolutely barring Intervenors from developing admis-sible evidence on at least three key claims which they would present, if permitted, to the Licensing Board: 1) that FEMA's dramatic reversal of position in the Seabrook case was substan-tially caused by pressure from NRC and others outside FEMA; 2) that FEMA first committed to NRC that it would change its posi-tion and formulated the proferred bases for the change afterward, and 3) that the key decision-makers at FEMA were heavily influenced by claims that Seabrook has a "special" containment, that life-threatening accidents are of such extremely low prob-ability as to be negligible and that releases would be essen-tially "benign" by the time they reached the beach. These argu-ments are either factually inaccurate and/or in conflict witn the governing precepts of emergency planning, If the Intervenors are effectively prevented from developing and presenting these argu-ments, the outcome of this litigation may well be predetermined.
This is not the usual case; there is no precedent for FEMA reversing field so completely on the fundamental issue of whether adequate protective action can and will be taken on behalf of the population near a nuclear plant. The ruling that Intervenors will be limited to the four corners of the FEMA testimony would ignore all that has taken place.
The Intervenors urge the Appeal Board to direct certifica-l tion of these rulings and to reverse them. Since that the cur-l
,esg rent schedule calls for hearings to begin May 2, 1988, Inter-venors would'also request that, if certification is granted , the hearings be stayed pending the Appeal Board's ruling.
Respectfully Submitted,
)y .
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Ellyn R. Weiss Harmon & Weiss 2001 S Street, NW Suite #430 Washington, DC 20005 Counsel for the New England Coalition on Nuclear Pollution On behalf of Intervenors NECNP Massachusetts Attorney General i
Seacoast Anti-Pollution League Town of Hampton
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r-000KETE0 thHEC 3 APR 28 A!0:40 0FFICEi:F$LucTM 00CMETING / SEitylC[Y BRANCH CERTIFICATE OF SERVICE I certify that,- on April 22, 1988, the foregoing Joint Intervenors' Motion for Directed Certification was served on the attached list by deposit in U.S. mail, first class, postage pre-paid.1
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Ellyn R. Weiss t
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SEABROOK SERVICE LIST - OFFSITE APPEAL BOARD
'Ivan W. Smith, Chairman Rye, New Hampshire 03870 U.S. NRC (POCH)
U.S.NRC Washington, D.C. 20555 Boston, MA 02109 Washington, D.C. 20555 Richard E. Sullivan, Mayor City Hall R. Scott Hill Whilton Sandra Gavutis
'Dr. Jstry Harbour Newburyport,MA 01950 Lagoilis, Clark, Hill Whilton RFD 1 Box 1154 U.S. NRC & McGuire East Kensington,NH 03827 Washington, D.C. 20555 - Alfred V. Sargent, Chairman 79 State Street Board of Selectmen Newburyport, MA 01950 Charles P. Graham, Esq.
'Gustsve Linenberger Town of Salisbury, MA 01950 McKay, Murphy and Graham U.S. NRC *H. Joseph Flynn, Esq. 100 Main Strert Washington, D.C. 20555 Senator Gordon J. Humphrey Office of General Counsel Amesbury,MA 01913 U.S. Senate FEMA Atomic Safety and Licensing Washington, D.C. 20510 500 C Street S.W. ' Alan S. Rosenthal, Chairman Board Panel (Attn. Tom Burack) Washington, D.C. 20472 U.S. NRC U.S. NRC Washington, D.C. 20555 Washington, D.C. 20555 Selectmen of Northampton "George Dana Bisbee, Esq. .
Northampton, New Hamp- Geoffrey M. Huntington, Esq. 'Howard A.Wilber i Atomic Safety and Licensing shire 03826 Office of the Attorney General U.S. NRC Appeal Board Panel State House Annex Washington, D.C. 20555 U.S. NRC Senator Gordon J. Humphrey Concord,NH 03301 Washington, D.C. 20555 1 Eagle Square, Ste 507
- Thomas G. Moore Concord,NH 03301 Allen Lampert U.S. NRC Docketing and Service Civil Defense Director Washington, D.C. 20555 U.S. NRC Michael Santosuosso, Town of Brentowood Washington, D.C. 20555 Chairman Exeter,NH 03833 Board of Selectmen
- By hand Mrs. Anne E. Goodman Jewell Street, RFD # 2 Richard A. Hampe, Esq.
Board of Selectmen South flampton, NH 03842 Hampe and McNicholas " By Overnight 1315 New Market Road 35 Pleasant Street Durham, NH 03842 Judith H. Mizner, Esq. Concord,NH 03301 Silverglate, Gertner, et al.
"William S. Lord, Selectman 83 Broad Street Gar) Y. Holmes, Esq.
Town Hall-- Friend Street Boston, MA 02110 Holnu & Ellis Amesbury, MA 01913 47 W'mnacunnent Road Rep. Roberta C. Pevear Hampton, NH 03842 "Jane Doughty Drinkwater Road SAPL Hampton, Falls, NH 03S44 William Armstrong 5 Market Street Cidl Defense Director Portsmouth, NH 03S01 Phillip Ahrens, Esq. 10 Front Street Assistant Attorney General Exeter,NH 03833 "Carol S. Sneider, Esquire State House, Station # 6 Assistant Attorney General Augusta,ME 04333 Cama A.Canney 1 Ashburton Place,19th Floor City Manager Doston, MA 02108 "Thomas G. Dignan, Esq. City Hall R.K. Gad II, Esq. 126 Daniel Street Stanley W. Knowles Ropes & Gray Portsmouth, NH 03801 Board of Selectmen 225 Franklin Street P.O. Box 710 Boston, MA 02110 "Matthew T. Brock, Esq.
North Hampton, NH 03826 Shaines & McEachern "Robert A. Backus, Esq. P.O. Box 360 J.P. Nadeau Backus, Meyer & Solomon Maplewood Ave.
Town of Rye 111 Lowell Street Portsmouth, NH 03801 155 Washington Road Manchester,NH 03105 Edward A. Thomas
'Sherwin E. Turk, Esq. FEMA Office of General Counsel 442 J.W. McCormack