ML20151W682

Memorandum & Order (Ruling on Applicant Revised Motion to Compel).* Applicant Revised Motion to Compel Granted in Part & Denied in Part.Served on 880822

ML20151W682
Person / Time
Site:	Seabrook
Issue date:	08/19/1988
From:	Wolfe S Atomic Safety and Licensing Board Panel
To:	PUBLIC SERVICE CO. OF NEW HAMPSHIRE
References
CON-#388-6950 88-558-01-OLR, 88-558-1-OLR, OL-1, NUDOCS 8808250086
Download: ML20151W682 (8)

Text

_ - _ _ _ _ __-____ ____ ______________ _ _ _ _ _ _ _ _ _

(,9so l'0LKE T E P N

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'88 ale 22 A8:50 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

OP r u n ,

Sheldon J. Wolfe, Chainnan 00CIM ^ " "

• N' Emmeth A. Luebke Jerry Harbour SERVED AUG 221988 Docket Nos. 50 443-OL-1 In the Matter of 50-444-OL-1 PUBLIC SERVICE COMPANY (On-Site Emergency Planning 0F NEW HAMPSHIEE, g g , ) and Safety Issues)

(ASLBP No. 68-558-01-0LR)

(Seabrook Station, Units 1 and 2)

August 19, 1988 MEMORANDUM AND ORDER (Ruling On Applicants' Revised Motion To Compel)

MEMORANDUM I. Background On July 20, 1988, the Applicants had filed a motion to compel answers M interrogatories propounded to the Attorney General for the Comonwealth of Massachusetts. During the course of a telephone conference call on July 26, 1988, the Board requested . hat the two parties meet in an effort to resolvi informally the discovery disputes.

On August 2, Applicants filed a revised motion to compel, advising therein that, while many discovery issues had been resolved, the two parties had been unable to agree on several issues. On August 15 Mass.

8808250006 000819 PDR ADOCK 05000443 of O PDR i~;

V

n 2-filea its response. We proceed to rule on these unresolved discoeery issues, l

II. Rulings On Unresolved Discovery Issues (

A. Trial Preparation Materials On Ju,e 24, 1988, Applicants filed their first set of interrogatories and first request for production of documents. In its I f

l response of July 12 to interrogatories 1, 2, 3, 44 and 45, Mass. I referred to the "trial preparation materials" privilege as grounds for objecting to the discovery requested and, in its response of July 26, listed but withhaid fourteen categories of documents as to which it l l

clained this privilege. Mass, argues in its response of August 15 that l the documentation withheld does fall within the work-product exception  ;

1 of 10 C.F.R. 92.740(b)(2), the three elements of which were set out in Public Service Company of New Hampshire (Seabrook Station Units 1 and f

2), LBP-83 17, 17 NRC 490, 495 (1983). The descriptions of the fourteen withheld documents are quite cryptic and Mass conclusionally states these documents rerulting froni consultations with experts of an acoustics firm "were prepared solely for litigation purmses and are exactly those types of documents which the privilege was designed to protect." In their revised motion to compel, Applicants are equally ,

cryptic, and, in relying upon the wording of 52.740(b)(2),

conclusionally aver that they have "substantial need of the materials in the preparation of [this] cat,e and that [they are) unable without undue

hardship to obtain the substantial equivalent of the materials by other means."

Mass has not met its burden of establishing that the withheld material qualifies as an attorney's work product, and the Applicants have failed to make a sufficient showing of necessity. The work preduct rule does not create a privilege -- it merely gives a qualified immunity from discovery. 8 Wright and Miller, Federal Practice and Procedures, Civil 92025 at 212, and the cases cited therein. Here, our determination rests upon the balance struck in the particulars of the instant case between the competing interests of full disclosure and protection for the fruits of the lawyer's labor. V. S. v. Swift and Company, 24 F.R.D. 280, 284 (D. C. Ill. 1959). Accordingly, we grant the revised motion to compel -- but, pursuant to $2.740(b)(2), we authorize Mass. to blank out any mental impressions, conclusions, opinions, or legal theories of its counsel set forth in the withheld documents.

B. Answers To interrogatories 6, 7 and 42 In its response of July 12 to Applicants' first set of interrogatories of June 24, 1988, citing ALAB-883, 27 NRC 43 (1988),

Mass. objected to and did not respond to interrogatories 6 and 7 on the ground that the questions were irrefevant to the subject matter of these .

proceedings. Further, in that response, Mass, responded only partially to interrogatory 42.

The information sought in interrogatories 6 and 7 related to any correspondence and oral contacts between the Mass. Attorney General's

Office (or any other employee of the Mass. government) and representatives of the Massachusetts towns within the EPZ. In their 1

motion to compel, Applicants argue that, since Mass, insists that unidentified ordinances passed by town officials should be construed as preventing operation of the Vehicular Alert Notification System (VANS) and that those town officials will prevent that system from operating, Mass. should not have its role in orchestrating that result shielded from discovery.

We agree with Mass that its "involvement" with the towns in opposing VANS is just as irrelevant as was its alleged involvement in any decision by a municipality to remove siren poles within its borders.

Granted the Appeal Board in ALAB-883 was only rejecting Applicants' claim that Mass. was estopped from seeking to reopen the record in order to file contentions asserting that Applicants were no l';nger in compliance with the NRC's emergency planning regulations inc:much as the towns had dismantled and remo'ved fixed emergency sirens within the towns' boundaries. However, the sense of the Appeal Board's decision was that it is not unlawful or untoward for the Comorwealth to consult with its agencies or political subdivisions and to take concerted actions to protect the public health and safety.

We note, however, that Mass, d6es not respond to Applicants' second ,

argument in support of the motion to compel -- viz. that interrogatories 6 and 7 are reasonably calculated to lead to discovery of admissible evidence because Mass. comunications with town officials may contain probative evidence of how those officials will interpret the

unidentified ordinances, as well as some indication as to the validity of those asserted interpretations. To this limited extent, we grant the motion to compel.

We deny Applicants' motion to compel a complete response to interrogatory 42. In its response of July 12 to Applicants' first set of interrogatories, Mass. stated that "no emergency warning sirens in the Comonwealth are installed or contemplated for use in an emergency at Seabrook Station " and objected to the generalized nature of the interrogatory as being irrelevant. In its response of August 15 to the revised motion to compel, Mass. explained that the balance of the interrogatory was irrelevant since it requested any document relating in any way to siren systems installed or contemplated anywhere in the Comonweal th. Tracking the wording in 62.740(b)(1), Applicants barrenly argue that the existence of other systems anywhere in Pass. and comunications with regard thereto could lead to the discovery of admissible evidence. It was not enough for Applicants to set forth the wording of the regulation -- it had to explain how and in what manner the response might lead to the discovery of admissible evidence.

C. Supplemental Answers On June 16, 1988, Mass. had served VANS-related interrogatories and document requests on Applicants. In~ their responses of July 5 and .

July 15 Applicants objected in part because therein Mass. sought confidential and proprietary infonnation relating to VANS after it had refused to enter into a protective agreement which would have allowed Mass. imediate access to this information. On June 24 Applicants had

1 filed their first set of interrogatories but, in its response of July 12, Mass, objected in the main to responding to Interrogatories 8, 10, 11, 12, 18, 19 and 20(e) because Applicants had refused, as noted above, to furnish certain requested information regarding VANS. On l July 5, Applicants filed a tration for a protective order, on July 18, Mass advised that it had agreed with Applicants to the terms and conditions of the affidavit of nondisclosure filed with the motion for protective order, and on July 27, the Board granted said motion.

Meantime on July 18, Applicants filed a supplementary interrogatory requesting that Mass. supplement its answers to Nos. 8, 10, 11, 12, 18, 19 and 20(e) of the first set of interrogatories. Thereafter, in additional responses of August 1 to Applicants' first and second sets of interrogatories, at footnote 2, Mass. stated that, under 10 C.F.R. 62.740(e), it was under no duty to supplement its earlier responses.

In its response to the revised motion to compel, relying upon 52.740(e), Mass. argues that its responses to the original interrogatories were complete inasmuch as Applicants had earlier refused to provide the requested infonration and chose to withhold it until a later date. The short answer is that Mass. neglected to read 12.740(e)(3) which is one of the exceptions to 12.740(e) -- i.e. a duty to supplement responses may be impos'ed by order of the presiding ,

of fice r. While we do not and will not rule whether or not Mass. early on should have agreed to execute the affidavit of nondisclosure, Mass, cannot be heard to argue now that Applicants belatedly furnished the withheld information and "must live with the adverse consequences of

7 their tactical maneuvering." Since it held the key at all times pertinent herein and indeed ultimately agreed to sign the affidavit of nondisclosure on July 18, its argument is without merit. Accordingly, we order that Mass, supplement its responses to Applicants' original Interrogatories 8,10,11,12,18,19and20(e).

D. Oath Or Affirmation In additional responses of August 1,1988 to Applicants' first ard second sets of interrogatories, the Assistant Attorney General for the Commonwealth stated that the answers "accurately set forth information as is available to" the Massachusetts Attorney General. Applicants' revised motion to compel requests that, pursuant to 62.740b(b) we order the Attorney General to file answers made under an oath or affirmation.

This part of the motion to compel is denied. We, like Mass., deem that the language quoted above is an affirmation by the Consonwealth's Attorney General. Further, we are told and rely upon the statement that "The responses are those of the Mass. Attorney General and the Applicants can rely on them as such in this litigation."

I o

S

i

(

ORDER For the reasons stated above, the Applicants' revised motion to compel is granted in part and denied in part. Any submissions required (

hereunder shall be served within 14 days after service of this issuance. j FOR THE ATOMIC SAFETY AND LICENSING BOARD

. $lk% UN Sheldon J. W6)fe, Crairman ADMINISTRATlW JUDGE ,

Dated at Bethesda, Maryland this 19th day of August, 1988, i

r 6

[

k n

I i