ML20151N488
| ML20151N488 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/02/1988 |
| From: | Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6868 OL-1, NUDOCS 8808090015 | |
| Download: ML20151N488 (16) | |
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'b $(o F f0CKETED U%RC August 2, 1988.
'EB AUS -5 P4 :46 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al.
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50-444-OL-1
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Onsite Emergency (Seabrook Station, Units 1 and 2)
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Planning Issues
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APPLICANTS' REVISED MOTION TO COMPEL Applicants move this Board to issue an order compelling the Attorney General for the commonwealth of Massachusetts (Mass AG) to (1) produce the documents he has identified but withheld from disclosure, (2) answer Applicants' first Interrogatories 6, 7, and 42, (3) answer Applicants' Supplemental Interrogatory, and (4) file answers to interrogatories signed under oath or affirmation by the person making them.
Backaround 09 June 24, 1988, Applicants filed their "First Set of Interrogatories and First Request for Production of Documents Regarding the Massachusetts Attorney General's Amended Contention on Notification System" ("Applicants' Interrogatories and Request for Production").
In light of D
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Mass AG's insufficient responses, on July 20, 1988, Applicants moved this Board to compel answers to bc filed f
I under oath or affirmation by the person (s) making the answers, and, further, that Mass AG be compelled to answer certain interrogatories to which he made objection or
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r otherwise failed fully to respond.
On July 26, 1988, this l
Board directed the parties to meet in an effort to resolve their discovery disputes informally.
Counsel for Applicants t
and Mass AG did meet, and while many discovery issues were resolved, they were unable to agree on several issues which are addressed here.
The present motion is directed to all the responses provided by Mass AG, including "Massachusetts Attorney General's Response to First Set of Interrogatories Regarding the Massachusetts Attorney General's Amended i
Contention on Notification System" ("Mass AG's Responses to Interrogatories"), filed July 12, 1988, "Response of Massachusetts Attorney General to Applicants' First Request l
for Production of Documents Regarding Amended Contention on l
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Notification System" ("Mass AG Response to Request for Production"), filed July 26, 1928, and "Massachusetts Attorney General's Additional Responses to Applicants' First Set of Interrogatories and Responses to Applicants' Second
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Set of Interrogatories" ("Mass AG Additional Responses"),
l filed August 1, 1988.
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Aroument 1.
Motion to Compel Production of Documents Withheld as "Trial Preparation Materials" Mass AG cannot maintain the secrecy of information underlying his centention by claiming it is undiscoverable as "trial preparation material."
In response to Interrogatories 1, 2,
3, 44, and 45 Mass AG makes reference to the "trial preparation materials" privilege as grounds for failing to provide the requested discovery.
In addition, in Mass AG Rosponse to Request for Production, Mass AG listed but withheld 14 categories of documents for which he claimed this privilege.
Applicants move this Board to order the production of these withheld documents.
The privilege Mass AG would assert cannot serve to maintain Mass AG's secrets by its more invocation.1 Mass AG cannot meet hir burden of establishing the existence of attorney work product privilege simply by gr.thering the docttments in his files.
Egg Public Service ConDany of New Haroshire (Seabrook Station, Units 1 and 2), LBP-8J-17, 17 NRC 490, 495 (1983).
Even assuming Maus AG could first show the existence of the privilege, his only argument for keeping the documents secret givus way to a showing by the Applicants that they have "substantial need of the materials in the preparation of IPresumably, since he rolles on the authority of 10 CFR
- s. 2.7A0(b)(2) for withholding tha documento, Mass AG would agree that the 14 document categories are "otherwise discoverable." -
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this case and that (they are) unable without undue hardship 4
to obtain the substantial equivalent of the materials by 4
other means."
10 CFR s. 2.740(b) (2).
Indeed, Applicants have no other way to discover the evidentiary basis of Mass l
AG's contention.
i The documents in the 14 categories appear from the scant
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descriptions to contain factual inforwation on which Mass AG bases his contention, which information Applicants will undcubtedly confront in any hearing on this contention.
The i
very purpose of discovery is to find out in advance what
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specific issues, if any, are in dispute and to narrow those i
issues, if possible.
Certainly, Applicants must be allowed 7
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to discover the bases for Mass AG's contention.
As the j
Appeal Board pointed out in Pennsylvania Power & Licht Co.
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(Susquehanna Steam Elect.ric Station, Units 1 and 2), ALAB-f t
i 613, 12 NRC 317, 339-40 (1980)*
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"In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an 3
intervenor must come forward with evidence j
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' sufficient to require reasonable minds to inquire i
further' to insure that its contentions are i
explored at the hearing.
Obviously,
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interrogatories designed to discover what (if any) j i
evidence underlies an intervenor's own contentions l
I are not out of order."
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Applicants have posed entirely proper questions and Mass l
AG cannot evade the answers by claiming they constitute j
"trial preparation material."
Mass AG may claim that the
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materials were somehow generated or helpful in the i
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preparation for trial.
But that argument proves too much; by I
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that measure, every speck of information in Mass AG's files would be off limits to his opponents, as it clearly is not.
Applicants are not interented in the details of Mass AG's litigation strategy, such as, for example, whether he plans to file motions for summary disposition.
Applicants are interested in -- and entitled to know -- the bases for Mass AG's contentions and, to the extent such information is included in the documents Mass AG has withheld, he should be required to produce them.
2.
Motion to compel Answers to Interrogatories 6, 7, and 42 Applicants renew their motion to compel answers tc three specific questions posed in their original set of interrogatories and about which counsel for Applicants and Mass AG could not agree.
Applicants move that the Board compel Mass AG to answer Interrogatories 6 and 7 and to answer fully Interrogatory 42.
In his responses to Interrogatories 6 and 7, Mass AG insists that his conversations with the officials of the Massachusetts towns for which the Vehicular Alert and Notification System ("VANS") has been created are not relevant.
At the same time, Mass AG insists that unidentified ordinances passed by town officials should be construed as preventing operation of VANS.
Mass AG wants the opportunity to argue that town officials will prevent VANS from operating, but seeks to have his role in orchestrating that result shielded from discovery.
Mass AG himself put __
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such matters in controversy in his contention; he must live
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with the consequent exposure.
Mass AG cites ALAB-883 as a basis for not responding to l
Interrogatories 6 and 7.
In ALAB-883 it was argueri that Mass AG was precluded from even being heard on the subject of a notification system, given previous involvement in the destruction of a once existing system.
This is not to say that the question whether he is involved in proscripting the operation of the new notification system is irrelevant to the l
l Very issues he raises.
It may be that his own actions are i
the foundation'of the issues he raises.
Indeed, that idea s
cannot be discounted as farfetched, as one document, Attachment I hereto, produced by Mass AG in response to i
another request, woul1 seem to show.
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The standard for discovery is whether the request is i
reasonably calculated to lead to the dis.covery of admissible l
evidence.
Mass AG's communications with town officials may i
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contain probative evidence of how those officials will interpret these unidentified obstructing ordinances, as well as some indication as to the validity of those asserted l
interpretations.
Thus, the information requested in Interrogatories 6 and 7 is reasonably calculated to lead to the discovery of admissible evidence as to whether the current system can be operated legally, independent of whether it might raise any issue of estoppel.2 Applicants' Interrogatories 6 and 7 meet that standard, and Mass AG's answers should be compelled.
Mass AG answered only a part of Interrogatory 42, avoiding the issue of emergency warning systems installed or contemplated within the commonwealth including but not limited to systems in the very towns of the Seabrook EpZ, and j
not just those "installed or contemplated for use in an emergency at Seabrook Station."
The existence of other systems and communications regarding those systems as well as the enforcement of policies or ordinances concerning those systems could lead to the discovery of admissible evidence and therefore the full answers should be compelled.
3.
Motion to compel Answer to supplemental Interrogatory Applicants' Supplemental Interrogatory reads as follows:
In light of the responses given by the Attorney General for the Commonwealth of Massachusetts ("Mass AG") to Applicants' First Set of Interrogatories and Request for Production Regarding the Amended conter. tion on Notification System ("First Interrogatories"),
Applicants request that the Mass AG supplenent his answers to Fos.
8, lo, 11, 12, 18, 19, and 20(e) of the First Interrogatories, a copy of which is attached hereto.
2Moreover, given that Mass AG in his interrogatories to Applicants demanded that Applicants "(d[escribe any and all attempts made by the Applicants to obtaj,n permission under local laws and ordinances for the operation of the VANS staging areas and acoustic locations and identify all documents relating to such attempts", it is inequitable that Mass AG should protest, on relevance grounds no less, when he is asked to provide the parallel information regardir.g himself..
In footnote 2 of his Additional Responses, Mass AG implies that he does not intend to file an answer to the Applicants' Supplemental Interrogatory of July 18, 1988, 5
incorporating Applicants' original Interrogatories 8, 10, 11, 12, 18, 19 and 20(e).
His grounds for not answering are simply the statement:
"Under 10 C.F.R.
s.
2/740(e)(sic), the Mass AG is under no duty to supplement its earlier rocponses."
Applicants move this Board to compel him to answer the interr 7atory posed.
When Mas onswered Applicants' first round of questions, he intnrposed that he could not answer some becauJe he did not have the confidential information he claimed he needed.
He has subsequently received that confidential information.
I.f Applicants had not propounded their supplemental interrogatory, Mass AG arguably would not have had a duty to provide the answers to Applicants' questions, as his original responses arguably were complete when made.
That is precisely why the questions were asked aca'n, formally.
Applicants are entitled to the answers and seek the intercession of this Board under Section 2.740(e) (3).
4.
Motion to Compel Answers to Be Signed Under oath or Affirmution In his most recent Additional Responses, at page 11, Mass AG has provided the information that "[t]he foregoing answers and the initial answers to tr.-: Applicants' first set of interrogatories accurately sets forth information as is
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available to the Mass AG."
Applicants move this Board to compal Macs AG to file ansvers made under an oath or affirmation to the same effect.
The Rules of Pr3ctice raquire that answers to interrogatories be nigned by the person making them and that 1
i they be signed under oath or affirmation ar to their t*uth and completeness, unless objection is stated.
10 CFR c 2.140b(b).
The difficulty with the current statement is the absenca of the oath, 7 "form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and' truthfully.
(a)n affirmation of truth of a statement, which renders one willfully asserting untrue statements punishable for perjury."
Black's Law Dictionary, 1
5th ed., at 966.
The signature of an attorney at the end under the phrase "respectfully submitted" is hardly the equivalent of an oath and, while no doubt significant for
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Civ.
P. Rule 11 purposes, does not serve the same avidentiary purposes.
. Conclusion Mass AG should be ordered to (1) produce the documents he has ider.tified but withheld from disclosure, (2) answer Applicants' first Interrogatories 6, 7,
and 42, (3) answer Applicants' Supplemental Interrogatory, and (4) file answers s
to interrogatories signed under oath or affirmation by the person making 1. hem.
By their attorneys, O
't iofas G.
Dignan, Jr.
l Kathryn A.
Selleck Joffrey P. Trout l
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Jay Bradford Smith l
Ropes & Gray 225 Franklin Street Boston, MA 02110
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(617) 423-6100 l
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1EeSJur Board or 5 ele.: men Tow n Hal!. An s! utv. MA 0:00 Tel. H5-0:90 "aren 7,
'.338 Cear 3: eve, Enclosed is a copy of the Aresbury Zoning By-Law : called acout thi s c.orning.
If your experts can assure us that the noise levels from the truck sirens violates these standards, the Town will instruct Counsel to seek whatever injuction or restraining order is appropriate.
Please let me know as scon as pessibles we would love to stop then dead in their tracks.
Sill 1
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6.
The cuildings or premises occupied shall not be rendered 00, action-able or detrimental to the residential character of the neighbor-hood due
".J the exter'or appearance, emission of odor, gas, 3.cke, dust, noise. electrical disturbance, or in any other way.
In a multi-family dwelling, the use shall in no way become objectionable or detrimental to any residential use within the multi-family structure.
7.
Any such building shall include no feature of design not customary in buildirgs for residential use.
8.
Such uses as clinics, barber shops, bakeries, gift shops, beauty parlors. tea rooms, tourist homes. animal hospitals. kennels, and others of a similar nature shall not be considered as home occu-pations.
G.
Environmental Performance Standards:
Any use permitted by right or special permit in sqy district shat! not be conducted in a manner as to emit any objectionable product, hazard, or any form of environmen-tal pollution that would in any amount affect adversely the surround-ing environment.
The following standards shall apply:
1.
Emissions shall be ccmpletely and effectively confined within the building, or so regulated as to prevent any nuisance, hazard, or other disturbance from being perceptible (without the use of in-struments) at any lot line of the premises on which the use is located.
2.
All activities aad all storage of flammable and explosive materials at any point, : hall be provided with adequate safety devices against fire and explosion and adequate fire-fighting and fire-suppression devices and equipment.
3.
No activities that emit dangerous radioactivity at any point; no elec 91 cal disturbance adversely affecting the operation at any polr Jr any equipment, other than that of the creator of such distuidance shall be permitted.
4 No emission of visib'e smoke of a shade darker than No. I on the Ringleminn Smoke Chart as published by the U.S. Bureau of Mines shall be permitted.
5.
No emission which can cause any damage to health of animals or vegetation or which can cause excessive solling at any point, or in no event any emission of any solid or liquid particles in con-L centration exceeding 0.3 grains per cubic foot of conveying gas or air shall be permitted.
6.
No discharge, at any point, into a private sewerage system, stream, the ground, or a municipal sewt,' age disposal system of any material in such a way, or of such a nature or temperature as can contami-nate any running stream, water supply, or otherwise cause the emis-sion of dangerous or objectionable elements and accumulation of wastes conducive to the breeding of rodents or insect shall be permitted.
7.
No vibration rhich is discernible to the human sense of feeling for three (3) minutes or more in any hour betwaen 7:00 a.m. and 7:00 p.m. or for thirty (30) seconds or more in any one hour be-tween 1:00 p.m. aad 7:00 a.m. shall be permitted. No vibration L
at any t ie shall produce an acceleration of more than 0.1 gram shall result in any combination of amplitudes and frequencies 69
beyond ne "33fe" range of Table 7. U.S. Bureau of Mines Sulletin Nc. 442.
B.
Maximum permissible sound pressure levels at specified points of reasurement for noise radia;ed continuously from a facility between 10:00 p.m. and 7:00 a.m. snall be as follows:
Frequency Band Sound Pressure Level (Cycles per second)
(Decibel _re. 0.0002 dyne /CM' 20-75 65 75-100 54 150-300 47 300-600 41 600-1200 37 1200-2400 34 2400-4800 31 4800-10,000 28 If this sound is not snooth and continuous, the following correc-tions should be added to edCh of the acutual decibel levels given:
3.
Dayttet Operation On'.y- - - - - - - - - - - - - -+5 b.
Noise source operations less than 20% of any hour pcriod
-+5 Only one (1) of the above corrections may be applied.
9.
No emission or odorous gases or odoriferous matter in such quan-tities as to be offensive shall be permitted.
Any process which may involve the creation and/or emission of any odors shall be provided with a secondary safeguard system.
No objectionable odor greater than that caused by 0.001202 per thousand cubic feet of hydrogen sulfide or cny "odor threshold" as defined in Table !!! in Chapter 5 of Air Pollution Abatement Manual, copy-right 1951, by Manufacturing Chemists Association, Inc., of Washington, D.C. shall be permitted.
10.
No direct or sky-reflected glare, whether from floodlights, or fr- - high temperature processes such as welding shall be permitted.
H.
P4anned Unit Development (PUD) by Special Permit:
1.
Authority to Grant Permits:
The Board of Appeals may grant a special permit for the construction of a Planned Unit Develop-ment (PUD) in the following districts:
Central Business Dis-trict and Central Industrial Olstrict.
The special permit shall conform to this title and to Chapter 40A, Section 9. General Laws and to regulations which the Board of Appeals shall adopt for carrying out its requirements under this title.
2.
Applicabllity:
The requirements of Section XI-H shall apply to applications for special permit for PUD.
Planned Unit Develop-ment (PUD) Districts shown in the Zoning Map shall conform in all respects to all pertinent sections of the Zoning Bylaw.
3.
Purpose:
The purpose of the PUD special permit is to provide for a mixture of land usage within the Town with the possibility of greater density and intensity than would normally be allowed.
provided that the land usage can be shown to be in the public good and:
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.f'[i, C CERTIFICATE OF SERVICE I,
Kathryn A. Selleck, one of the attorneys for the Applicants herein, hereby certify that on August 2 Mh9EE,-3 P4 :46 made service of the within document by depositing copies thereof with Federal Express, prepaid, for deliverynto (or where indicated, by depositing in the United Statepxuall,;:..,,'id first class postage paid, addressed to) the individualdfahCW.
listed below.
Administrative Judge Sheldon J.
Robert Carrigg, Chairman Wolfe, Esq., Chairman, Atomic Board of Selectmen Safety and Licensing Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesla, MD 20814 Administrative, Judge Emmeth A.
Diane Curran, Esquire Luebke Andrea C.
Ferster, Esquire 4515 Willard Avenue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
Washington, DC 20009 Dr. Jerry Harbour Stephen E.
Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission One White Flint North, 15th F1.
East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814
- Atomic Safety and Licensing Robert A.
Jackus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S.
Huclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 w
Philip Ahrens, 43 quire Mr.
J.
P.
Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Clark, Hill-Whilton &
Washington, DC 20510 McQuire (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J.
Humphrey Mr. Peter J. Matthews i
One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Gary W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I 79 State Street 442 John W. McCormack Post Second Floor Office and Court House Newburyport, MA 01950 Post Office Square Boston, MA 02109 e
F4th[yn'AiSelleck
(*= Ordinary U.S. First Class Mail.)
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