ML20215M191

Motion for Acceptance of Protective Order or in Alternative for Stay of Requirements of 870430 Order & for Expedited Referral of Certification.* Proposed Protective Order Encl

ML20215M191
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/07/1987
From:	Miller S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20215M194	List: ML20215M191 ML20215M214
References
CON-#287-3421 OL-3, NUDOCS 8705130117
Download: ML20215M191 (14)

Text

-

0:  :

Q 00LKEIED' LILCO, Sh)k 1987 -

UNITED STATES OF AMERICA 17 MY 11 P3 :01 -

NUCLEAR REGULATORY COMMISSION OFFICL 0: JL,39 ;;,n Before The Atomic Safety and Licensinst Board hhc In the Matter of- )

)

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

) (Emergency Planning)

(SHOREHAM NUCLEAR POWER STATION, )

UNIT 1) )

MOTION FOR ACCEPTANCE OF PROTECTIVE ORDER OR IN THE ALTERNATIVE FOR STAY OF REQUIREMENTS OF APRIL 30,

- 1987 ORDER AND FOR EXPEDITED REFERRAL OR CERTIFICATION

'i I. Introduction In written testimony filed by LILCO on March 30,1987, witness Charles Daverlo stated that certain " contacts made by (his] staff with county and utility personnel of several sites" showed that other nuclear plants in the State of New York do not have the capacity to monitor 100% of the relevant EPZ population in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. Written Tes-timony of Charles A. Daverio e_t al. (March 30,1987), at 12. That one statement is the focus of the present dispute.

By letter of April 2,1987, Suffolk County requested the identities of the county and utility personnel contacted, the date of each contact, the person making each con-tact, and all documents reflecting these contacts. Letter from Christopher M.

McMurray to James N. Christman, April 2,1987. The next day, April 3,1987, LILCO produced the two documents on which the testimony is based. Though LILCO had re-

. fused to produce these same documents earlier, it agreed to do so on April 3, "in order to avoid a needless dispute." Letter from Mary Jo Leugers to Christopher M.

McMurray, April 3,1987. LILCO. however did redact from the documents the names E 8705130117 870507 PDR ADOCK 05000322 G PDR ()

i-

6~

~

of the county and utility personnel contacted on "the ground that disclosure might sub-ject individuals to harassment and intimidation."O I_d.

Intent on knowing who had supplied LILCO with the information about moni-toring capabilities at other facilities, Suffolk County, now joined by the State of New York, moved to compel LILCO to reveal the sources. See Suffolk County and State of New York Motion to Compel LILCO to Provide Sources of Data Relied Upon In Testimo-ny (April 13, 1987). In that motion,Intervenors asserted that they need to know the names of LILCO's sources to inquire into the validity of LILCO's data. Intervenors dis-missed LILCO's claim that disclosure of the names might subject the sources to ha-rassment or intimidation as " utter nonsense." Id. at 4.

The Board disagreed. In its order ruling on the Intervenors' motion, the Board found that:

The application is heard in an acrimonious atmosphere. Ex-tensive pressure has been brought upon individuals, groups and organizations that cooperate and participate with LILCO in_the emergency plan. Participants have succumbed to such pressures to LILCO's detriment. LILCO's sources, who are in the public and private sector, should be protected f rom possible harassment, intimidation or pressure.

Memorandum and Order (Ruling on County and State Motion to Compel, of April 13, 1987)(April 30,1987)(" Order"), at 8. Nonetheless, the Board found that the Intervenors had an interest in the information sought as it related to testimony filed by LILCO. Id.

at 5,6. Striking a balance between the competing interests it saw, the Board ordered LILCO, subject to an " appropriate protective order," to "make available to Intervenors the information they seek that underlies [Mr. Daverio's testimony.]" Id. at 8. The Board instructed LILCO to submit a proposed protective order by May 7,1987.

1/- LILCO also asserted that the names were protected by the attorney work product privilege, and that as Intervenors have better access to the monitoring capabilities of the counties, they had no substantial need for the information.

Accompanying this motion, LILCO' provides that proposed protective order.

LILCO hereby moves this Board to accept this order, which LILCO believes adequately protects the interests of all parties in this matter. Should the Board deny this motion, LILCO alternatively moves for a stay of the April 30,1987 order requiring LILCO to make available to Intervenors the sources of the data, and for En expedited referral to the Appeal Board of that order or certification to the Appeal Board of the disclosure question.

II. LILCO's Proposed Protective Order Strikes A Proper Balance Between The Interests of the Parties The Board has found that both the Intervenors and LILCO have interests in need of protection here. While the Intervenors need ta be able to explore the validity of LILCO's data, requiring LILCO to reveal to Intervenors the names of its sources will irrevocably damage LILCO's interests and the iaterests < its sources. Accordingly, LILCO has fashioned a protective order that will protect the Intervenors' interests without unduly jeopardizing those of LILCO and its sources.-

Under the proposed protective order (Attachment I hereto), LILCO will provide to the Board only, under seal, the names and positions of all county and utility person-nel contacted to determine monitoring capabilities of reception centers in New York other than Shoreham. Protective Order 15. (Indeed, that information is being sent to the Board today.2/ In addition, LILCO will provide to counsel for Intervenors "a de-scription of the relevant responsibilities, knowledge, and function" of each such person.

2/ Because of the importance of keeping this information confidential, LILCO is re-luctant to telecopy it to Washington for hand delivery. Accordingly. LILCO is sending one copy of the information to Judge Margulies by overnight express service, to be de-livered May 8,1987.

Protective Order 1 1. This description will be sufficiently specific to permit Interve-nors to assess the reliability of the data offered in testimony by Mr. Daverio. Pro-tective Order 12. Access to the information so disclosed will be limited exclusively to counsel for Intervenors and to those employees of such counsel who have a legitimate need to know. Protective Order 13. Furthermore, the information shall be used solely for purposes of this litigation, and, if used during the hearing, must be presented in camera and the transcript sealed. Protective Order 117,9. Finally, all contacts by In-tervenors with individuals designed to gather information about the data in LILCO's tes-timony must be documented by Intervenors and disclosed to LILCO and the Board. Pro-tective Order 16.

A protective order that required more of LILCO would not adequately protect the interests of LILCO and its sources. As the Board has recognized, the present appli-cation proceeding has been marked by acrimony. On several occasions. Intervenors have brought to bear tremendous pressure on those who have cooperated with LILCO in preparing emergency response planning for Shoreham. See LILCO's Answer Opposing Intervenors' Motion to Compel of April 13, 1987. This has caused harm in the form of intimidation and harrassment to those who have tried to work with LILCO. It has in-Jured LILCO as well, as some have bowed to the pressure and withdrawn from partici-pation in the Plan.

The only way to prevent this harm is to withhold f rom Intervenors the names of the LILCO sources, as the LILCO protective order proposes. Indeed, even limiting dis-closure of the names to counsel for Intervenors would not provide adequate protection.

The harm would be done merely by disclosing the information to counsel, even if they never contacted any of the sources, for the following reasons.

a i

LILCO depends on a healthy working relationship with other utilities and the counties to service its customers safely and efficiently. For instance, in the event of an emergency, whether at Shoreham or at a non-nuclear facility, LILCO must be able to rely on other utilities, and possibly counties, to obtain support, including manpower, equipment, and backup power. (See LILCO's Written Testimony at 52-54). In addition, LILCO relles upon a flow of information among the utilities and the county planners to keep abreast of developments in the utility industry, including developments in emer-gency planning. Disclosure of the names of LILCO's sources would severely jeopardize this.

These other utilities and the counties must also maintain a working relationship with the State. One need look no f arther than the present case to understand the con-sequences of a poor relationship with the State. Current nuclear power plant licenses and pending applications hang in the balance. In addition, utilities are subject to con-

- siderable State regulation, including the regulation of rates. Thus, the utilities, as well

.as the counti es cooperati ng with them, have a strong interest in maintaining a positive

. relationship with the State.

Given the well-known " acrimonious" relationship between Intervenors and LILCO, however, the mere knowledge that the State is aware of the identities of those who have cooperated with LILCO may well put the informants and their employers in fear of retribution by the State, whether or not this fear is justified. In addition, the individuals would reasont. j fear for their jobs should it become known that they had

' been the cause of a soured re!ationship with the State. Having been placed in a poten-tially compromising position because of the disclosure of their cooperation with LILCO against the State, the sources, a3 well as their colleagues, would understandably be re-luctant to deal with LILCO again. Thus, the mere disclosure of the names of LILCO's

,, -- -,, - ~ , . - , , . . - . . , _ , ~-.-_.,

sources may damage LILCO's relationship with other utilities and the counties and dry .

e up the flow of information between these organizations. See Affidavit of Richard J.

Watts, appended hereto as Attachment 2.

' This problem would be exacerbated should the Intervenors actually contact the sources. A mere phone call f rom counsel for the Intervenors to verify information pro-vided to LILCO, especially when that information was contrary to the known interest of the State, would be precisely one of those inherently intimidating experiences that the Board has found LILCO's sources must be shielded from.

Thus, forcing LILCO to divulge to Intervenors the identities of its sources would significantly impair the interests of both the sources and LILCO. The protective order proposed by LILCO would minimize the likelihood of this occurring.

The Intervenors' interests would also be protected under the order proposed by LILCO. In their Motion to Compel, Intervenors of fer two reasons to justify their "need" 4

for the names of LILCO's sources. The first is that they must be able to explore the va-lidity of LILCO's data. Intervenors admit, however, that they "may or may not contact the unnamed LILCO sources. . . ." Suffolk County and State of New York Motion to I Compel LILCO to Provide Sources of Data Relied Upon In Testimony (April 13,1987), at 4 (emphasis added). Since Intervenors have not even decided whether to make use of this information, it would be patently unf air to LILCO and its sources to force disclo-sure now in the event that Intervenors might decide to do so at some time in the future.

In addition, under the proposed protective order LILCO will disclose general de-scriptions of the knowledge. responsibilities, and functions of the individuals providing the information. Thus, Intervenors can contact an equivalent individual with a county or utility to obtain monitoring capacity data. In this way, Intervenors will be able to explore the validity of LILCO's data.

-4 Moreover,Intervenors' argument that they need the names of LILCO's' sources to explore the validity of the data is premature. There is a much less drastic first

.4 step - making an independent inquiry into the monitoring capacities of the reception ,

centers referenced in LILCO's testimony. If such an inquiry uncovered substantially similar data to that of fered by LILCO, the present dispute would disappear, for it would

. no longer matter how LILCO had obtained its information. Thus, it would only be if In-tervenors uncovered a discrepancy that exploration of LILCO's data would be neces-sary. Despite more'than a month since LILCO filed its testimony, however, Intervenors have failed to take this first step. In addition, they have provided no indication that they intend to do so in the future. This cannot be because of hardship, for the Interve-nors have better access than LILCO to the monitoring capabilities of the counties. It would be unfair to LILCO to require disclosure of sensitive information until it has been established that such disclosure is necessary. Especially here, where verification would be easy, the mere supposition by Intervenors that LILCO's data might not be accurate should not be enough.

Intervenors'second argument is that the names are necessary to indicate how much credence to give LILCO's sources. LILCO admits that the positions held by the sources might provide insight into the weight to be given LILCO's data. It is up to the Board, however, not the Intervenors, to determine how much credence to give a source of information. Thus it is the Board, not the Intervenors, who need this information.

With this motion,'LILCO is providing the Board, under seal, the name and position of each individual contacted by LILCO regarding monitoring capabilities at other nuclear

, power plants in New York.

LILCO submits that the proposed protective order strikes a f air balance between the interests of the parties. Under it. Intervenors will be able to explore the validity of

_p l'

,, r-,-- , w.,,,,-- --~ - - -,,- ,,,, ,, y w e>, - -,, , e--- w,. , --n--- , ,- -- + , y = nw

m the data relied on by LILCO. At the same time. LILCO and its sources will be protected .

from the manifest harm that would befall them if LILCO were required to' disclose to Intervenors the names of its sources. Accordingly, LILCO moves this. Board to accept

~

the protective order proffered by LILCO.

111. Sho' u ld the Board Refuse To Accept LILCO's Proposed Protective Order, The Board Should Certify The Disclosure Question Or Refer For Appeal Appeal The April 30,1987 Order And Should Stay The '

Requirements Of The Order Pendinst This Appeal The Board recognized in its April 30,1987 order that the disclosure to Interve-nors of the names of LILCO's sources presents a very real danger of harm to both LILCO and its sources. As explained above, the damage will occur from the mere act .

of disclosing the names. Once the names are disclosed, the etfeet is irrevocable. - Minds f

cannot be cleared should it later be determined that the disclosure should not have

!- l occurred.' Thus, for LILCO to have a meaningful right of appeal of the April 30,1987 order, LILCO must be granted interlocutory review immediately.

Referral of a ruling is authorized under 10 C. F. R. 5 2.730 (f). Certification of a

-question is permitted under 10 C. F. R. S 2.718 (1).E Either would be appropriate here.

j- The Appeal Board has held that interlocutory review is appropriate when a ruling:

(1) threaten [s] the party adversely affected by it with immediate and serious irreparable impact which

as a practical matter, could not be alleviated by a later appeal . . . .

i Public Service Co. of Indiana blarble Hill Nuclear Generating Station, Units 1 and 2),

3/ LILCO proposes the following question for certification to the Appeal Board:

Must LILCO reveal to Intervenors the names of the sources of its data concerning the monitoring capabilities of recep-tion centers in New York?

em o

e

-S ALAB-405,5 NRC 1190,1192 (1977). See also Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23,19 NRC 1412,1416 (1984); Washington Public Power Supply System (WPPSS Nuclear Station Project No. 3), LBP-84-17A,19 NRC 1011,1017 (1984); and Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106,16 NRC 1649,1653 (1982).

In addition,in its 1981 Statement of Policy On Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452, 456, the Commission stated:

If a significant legal or policy question is presented on which Commission guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission.

The Atomic Safety and Licensing Appeal Board found that circumstances similar to the present case were appropriate for interlocutory review in Kansas Gas and Electric Co., Kansas City Power and Light Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327,3 NRC 408 (1976). That proceeding involved a construction permit in which issues relating to the costs to be incurred in acquiring nuclear fuel were rele-vant. The intervenors sought production of a nuclear fuel supply contract the applicant had entered into with a third party. The applicant agreed to produce the contract if the intervenors would execute a non-disclosure agreement. The intervenors refused, instead filing a motion to compel unlimited disclosure. The applicant opposed the mo-tion on the ground that the contract contained sensitive proprietary information.

Nonetheless, the Board ordered the applicant to produce the contract without any re-striction on its use by the intervenors.

The applicant filed a motion with the Appeal Board for directed certification of the matter. The Appeal Board granted the motion holding that:

A unlike most interlocutory discovery orders, the one here-involved must be reviewed now or not at all.

Id.' at 413.

As in Wolf Creek, the Intervenors here seek disclosure of sensitive information.

In both cases, the effects of such disclosure are irrevocable. Thus, the Appeal Board's holding applies here as well. The April 30,1987 order directing disclosure "must be re-viewed now or not at all."

Moreover, the present dispute involves significant public policy questions -- the scope of protection to be accorded confidential sources when disclosure of the names of the sources would injure both the sources and the party relying on those sources; the use which a party may make at a hearing of confidential information; and the showing a party must make to justify disclosure of sensitive information. Accordingly, referral or certification '.s appropriate.3/ In addition, if the appealis to be at all meaningful, this Board must stay any requirement that the names of LILCO's sources be disclosed until the outcome of the appeal.

Respectfully submitted, James N. Christman Stephen W. Miller Hunton & Williams 707 E. Main Street P. O. Box 1535 '

Richmond, Virginia 23212 DATED: May 7,1987 3/ As the present dispute concerns a discovery matter in a proceeding scheduled for hearing in slightly more than or.e month. LILCO requests that the Board grant an expe-dited referral or certification.

e, Attachment 1 s.

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

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

PROTECTIVE ORDER Having granted Intervenors'" Motion to Compel LILCO to Provide Sources of Data Relied Upon in Testimony" and pursuant to 10 C.F.R. S 2.740(c), upon motion of the Applicant, and deeming it just and proper to subject such data to a protective order, it is hereby ORDERED:

1. Applicant LILCO shall disclose in writing to counsel for Intervenors, in confidence, a description of the relevant responsibilities, knowledge, and function of each county and utility employee who provided information to Charles Daverio's staff about the monitoring capabilities of reception centers for nuclear power plants in New York other than Shoreham that is reflected in LILCO's prefiled testimony on reception centers. As reflected in that testimony, those counties include Westchester, Rockland, Orange, Monroe, Wayne, and Oswego. A copy of this filing shall also be provided to the Board.

2. LILCO's descriptions of the utility and county personnel contacted by LILCO staff shall be sufficiently specific to (1) provide a prima f acie indication of the reliability of the information reported, based upon the level and nature of responsibility

. l

. g-for the specific radiological plan for monitoring evacuees in that county, and to (2) en-1 able the Intervenors to conduct their own investigation of the validity of the data testified to by the Applicant.

3. Such information shall be disclosed only to counsel for Intervenors who have responsibility for litigating in this proceeding and such counsel's employees who, in the normal course of their assignment regarding this proceeding, have a specific need to know the information. It is expressly understood that " counsel for Intervenors who have responsibility for litigating in this proceeding and such counsel's employees"

, refers only to that minimal number of attorneys, paralegals, and administrative person-nel who are engaged to represent the Intervenors on this specific issue in this proceed-ing and does not include any person who is otherwise employed by a party or any wit-ness or expert engaged or employed by counsel. Counsel for Intervenors shall not otherwise disclose or permit disclosure of this information by any means, whether with-In or beyond the context of this litigation, without specific prior order of this Board. A list of each of the counsel for Intervenors, and of each person to whom this information is intended to be provided by counsel for Intervenors, shall be provided in writing to LILCO and to the Atomic Safety and Licensing Board within three business days of re-ceipt by Intervenors of this Protective Order.

4. In order to prevent the potential for harassment and intimidation of those persons who provided LILCO with information about the monitoring capacity of other reception centers, Applicant will not be required to provide the Intervenors with the actual names of the utility and county personnel contacted by Charles Daverio's staff, so long as the information in paragraphs 1 and 2 above is provided.

5. LILCO shall disclose to the Atomic Safety and Licensing Board in this pro-coeding under seal the names of each county and utility person who provided

.--- - ____ .-_-.-._. - --.~

e information to Charles Daverio's staf f about the monitoring capabilities of reception centers for nuclear power plants in New York other than Shoreham that is reflected in LILCO's prefiled testimony on reception centers. The list of the names provided the Board shall include the individuals' positions and the names of the organization they work for. This list shall remained scaled with the Board and shall not be disseminated to any other person.

6. All contacts of any kind by Intervenors with any person for the purpose of investigating the data in Question 16 of LILCO's written testimony of March 30,1987 shall be documented and reported in writing to LILCO and the Board within three busi-ness days af ter the contact. For each such contact, Intervenors shall indicate the

~

name(s) of the individual (s) who made the contact, the name(s) of the individual (s) con-tacted, the date and time of the contact, where the contacts were made, the content of all conversations with these individuals, and the names of all people who were present during the contacts.

7. Persons having knowledge or possession of this confidential information about LILCO's contacts shall use it solely in the prosecution or defense of this litigation and shall not disclose such confidential information to any person other than those per-sons described in paragraph 5.

8. LILCO is not required to provide the names of individuals on Charles Daverio's staff, whether Lil.CO employees or consultants, who made contacts with the county or utility personnel who provided the information about monitoring capabilities at other reception centers set forth in LILCO's testimony.

..s-, - - - ,- - - - - ,- - -- -- , - -

i

9. To the extent that any portion of this proceeding before this Board would result in the disclosure of this information, such portions of this proceeding shall be held ir} camera and the transcript thereof sealed.

FOR THE ATOMIC SAFETY AND LICENSING BOARD i

Morton B. Margulies, Chairman ADMINISTRATIVE LAW JUDGE l

r, 1

J

. _. _ _ - _ _._ . . _ . . _ . .- . _. ._ _ _ _ . . _ _ . -- _ _