ML20196F107
| ML20196F107 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/25/1988 |
| From: | Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, REID & PRIEST |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5711 OL, NUDOCS 8803020034 | |
| Download: ML20196F107 (19) | |
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o FebruS % i, 1988 UNITED STATES OF AMERICA '88 FEB 29 P3:56 NUCLEAR REGULATORY COMMISSION GFFICL GF %,,7 y -(
before the DOCKET',g. Ei< vin ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL
) Offsite Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues
)
)
APPLICANTS' REPLY TO MEMORANDUM OF ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS REGARDING UNRESTRICTED PUBLICATION OF INFORMATION REDACTED FROM THE SEABROOK PLAN FOR MASSACHUSETTS COMMUNITIES Backcfround On September 18, 1987, Applicants filed with the Nuclear Regulatory Commission the Seabrook Plan for Massachusetts Communities ("SPMC") from which certain information had been redacted. In its decision of November 25, 1987, the Nuclear Regulatory Commission held that the SPMC satisfied the Commission's policy concerns about adequate emergency planning for Massachusetts communities within the Seabrook Station EPZ prior to authorization of low power operation of Seabrook Station. Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-13, NRC ,
slip op. at 5 (November 25, 1987). The Commission also 8803020034 080225 PDR G
ADOCK 05000443 PDR D 1
s noted, however, that "as a condition of low power operation, the licensee must provide to the staff and FEMA any of the deleted information that the staff and FEMA deem necessary for the detailed full power review of the emergency plan."
f 142 at 6. The commission also contemplated the need for a protective order to prevent unnecessary violations of personal privacy. Idz at 6-7. In December 1987, Applicants provided the Staff with the information the Staff requested, together with a request that the Staff preserve the confidentiality of the information.
In December 1987 and January 1988, Applicants offered to make the same information available to the Attorney General of the commonwealth of Massachusetts ("Mass AGH) and other intervenors in the Seabrook proceedings, under a protective order. (Ir2 8401.) In this way intervenors could have immediate access to the information. The offer was not accepted until February 10, 1988. (Ir2 9725.) After discussion among the parties at the hearing and circulation of Applicants' proposed form of protective order, this Board entered its temporary protective order which currently governs the parties' use of the confidential information.
Mass AG filed his opposition to the imposition of any protective order and argued that he should be allowed unrestrictedly to publicize the confidential information.1 1 Mass AG's submission also contains a complaint that he is entitled to more information from the Applicants than the Staff has requested for its review of the SPMC. Applicants
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Applicants oppose Mass AG's suggestion and move this Board to continue in effect the current protective order.
Araument
- 1. Good Cause Has Been Shown For a Protective Order In the discovery context, under 10 CFR 5 2.740(c), for good cause shown, this Board may make an order which justice requires to protect persons from annoyance, embarrassment, oppression, or undue burden or expense, that informttion be disclosed only on certain terms and conditions, or that confidential commercial information not be disclosed or be disclosed only in a designated way. Applicants have proposed, even though discovery on the SPMC has not commenced, that discovery be had, as long as the recipients of confidential information be accountable to this Board for their use of the information under an appropriate protective order.
Good cause for a protective order has been shown in this case. The information intervenors now hold specifically have made no difficulties about providing Mass AG, under an appropriate protective order, with the information given to the Staff, but believe that Mass AG's demand for even more information is unreasonable. Mass AG's assertion that the Commission intended him to receive a complete copy of the SPMC is incorrect. The Commission merely indicated that Applicants were to state their willingness to give the information requested by the Staff and FEMA to other parties as well. The Commission said nothing about information that the Staff does not deem necessary for full power review of the SPMC. Nevertheless, should this Boarc decide that Mass AG's demand for even more information is within bounds, Applicants request that such information be provided only under this Board's protective order.
identifies providers of services and support under the SPMC
("providers"). This information constitutes private information about the providers and also confidential commercial information of the Applicants. If intervenors are permitted unrestrictedly to publicize the identity of providers and their support of and cooperation with Seabrook emergency planning, the providers may be exposed to harassment, intimidation, economic reprisals, or other disturbances by members of the public who are not accountable to the parties and this Board for their conduct. Applicants too would be harmed by intimidation or other disturbances of r
providers, as such conduct would result in hindering the emergency planning process and perhaps diminishing the efficacy of the SPMC.
In Houston Licht and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979), the Atomic Safety and Licensing Appeal Board provided guidance for cases such as this:
"Upon a determination that an adequate showing has been made that public revelation of the identity of a member of the petitioner organization micht threaten rights of association, the licensitig board should place a protective order upon that information."
Id2 at 400 (emphasis added). The showing to be made is not that privacy rights will certainly or even probably be threatened by public revelation of individuals' identities, but that they might. That showing has been made here.
In Allens Creek, supra, the National Lawyers Guild was p
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attempting to intervene without disclosing to anyone, including the Board and parties, a single member's name to establish standing, contending that such disclosure would violate rights of association. The Appaal Board found the claim to lack any basis: "Indeed, the objective indicia within our ken belle [the Guild's] insistence that, if identified, its members would suffer the consequences it describes." Id2 at 399. The Appeal Board went further and specifically took official notice that the overwhelming majority of intervenors were not reluctant to make disclosures of members' names. Idi at 399-400.
By contrast, this Board has taken judicial no*4.ce of the expressed willingness of members of the public to break the law to stop the Seabrook lice"s):t effort.2 No further showing is required. The privacy of the providers should be 2"(Wje know that there are people who have come to this hearing and have refused to comply with the law, that have broken the law repeatedly before us, so we are not naive either. And we have had people tell us that they will break the law with respect to this hearing if it means stopping that plant. . . . We know that there are people who will l violate a protective order if it suits their purposes. . . .
The point is, there is that risk there. We know, we see it's there, and we're not going to ignore it . . . (W]e're basing what happened on the public record, in our view, judicially observed, that there is an environment where otherwise responsible people who hold themselves out as public officials have told us that they will violate the law if it meets their convenience and satisfies their philosophy. We hear it; we see it; and we're going to take it into account."
Tr. 9742-43.
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- protected.3 In a discussion of the very information at issue here, the Nuclear Regulatory Commission itself clearly contemplated the need for a protective order, and, moreover, expressed its confidence in the Atomic Safety and Licensing Board's ability to fashion appropriate protective ordere which would "allow full litigation of contested issues without unnecessarily violating personal privacy." CLI-87-13, slip op. at 6-7.
Mass AG labels the concern for the providers' privacy "conclusory speculation" and insists that he is entitled to disseminate tha information to hundreds of people who are not accountable to this Board for their conduct toward the providers. Mass AG Memorandum at 9, 14. Such publicity is surely not necessary for the purposes of drafting contentions. The temporary protective order entered by this Board fairly meets the legitimate needs of the intervenors to have access to information about providers and at the same -
time protects the privacy of those providers. Under the Board's temporary protective order, the intervenors are permitted to contact the providers, or, if they choose, to 3 Mass AG cites no authority for his assertion that "commercial entities" have no privacy rights. Mass AG Memorandum at 10. A "commercial entity" is of course composed of human beings -- employees, officers, and owners
-- who unquestionably do have privacy rights. United States
- v. Lasco Indus.. Div. of Phillies Indus.. Inc., 531 F. Supp.
256 (N.D. Tex. 1981) (company may assert privacy rights of employees against disclosure). Further, the confidential information Mass AG seeks to publicize is replete with the names of individuals as well as businesses.
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have advisors or experts contact those providers, to determine whether the providers exist, whether they have correctly stated their resources, and whatever else intervenors think they need to know from the providers for the litigation of the SPMC. The protective order is nufficiently narrow so as to accomplish its dual purposes of permitting full litigation without unnecessarily exposing the providers to intimidation and other disturbances.
In fact, this Board's temporary protective order is more narrowly drawn than that suggested by the Appeal Board in Allens creek:
"The (protective) order should provide that the information need be supplied only to the members of the Board and one or more designated representatives of the other parties to the proceeding. Additionally, it should prohibit further dissemination of the information to anyone (other than a member of a reviewing tribunal)."
Id2 at 400. This Board has been less restrictive in allowing experts and advisors of representatives of all the active l
parties access to the protected information. Mass AG apparently does not quarrel with the form of this Board's temporary protective ceder, but with the imposition of any such order. He has not, in any event, suggested a different version.
A protective order is also necessary to safeguard the economic interest of Applicants in their emergency planning and in maintaining the efficacy of the SPMC. Egg, e.o.,
Commodity Futures Tradina Commission v. Rosenthal & Co., 74 F.R.D. 454 (N.D. Ill. 1977) (protective order granted to avoid serious adverse consequences to defendant's business under which order plaintiff Commission only allowed to contact customers by court-approved written questionnaire).
It is not known whether any intervenor will ever decide it has sufficient basis to contest the ability of the providers to deliver the services contemplated in the SPMC.
Assuming that the providers are willing and able to fulfill their commitments, there may never be a public contest requiring disclosure of their involvement in the SPMC.4 Surely unrestricted pt511 city as to their involvement at this time, which could expose them to harassment or other disturbances for no legitimate purpose, is unnecessary. If, after contacting a provider, an intervenor feels it has sufficient basis to contest that provider's resources, it may become necessary to disclose that provider's identity to unauthorized persons, as, for example, in a public hearing.
Unrestricted publicity now, however, is not yet justifiable.
This Board's protective order does not interfere with 4 Applicants disagree with the suggestion made by Mass AG at the hearing on January 13, 1988 that widespread publicity is inevitable. ("MR. TRAFICONTE: Well, I have only one more point and that is, if Mr. Dignan could respond to the point that both the Board and I think, we made, that at some point this information is going to be made public and I don't think there:L any dispute on that. And these individuals who have a flag with a crustacean (sic -- bivalvo, actually) on it, are going to do whatever they're going to do at that time, aren't they?" Tr. 9002) If intervenors do not contest a provider's commitment, it may never receive widespread
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traditional public int'erest. As the court observed in another famous case, Korean Air Lines Disaster of Sentember r
- 1. 1983, 597 F.Supp. 621, 623 (D.D.C. 1984):
"(L]itigants do not have 'an unrestrained right to disseminate information that has been obtained through pretrial discovery.' Seattle Times Co. v.
Rhinehart, U.S. , , 104 S.Ct. 2199, 2207, 81 L.E.2d 17 (1984). Because information discovered at the pretrial stage is not considered within the public domain, ' restraints, placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.' 104 S.Ct. at 2208."
Similarly, in In re Alexander Grant & Co. Litication, 820 F.2d 352, 355 (11th Cir. 1987), the Court of Appeals pointed out:
"The discovery process, as a ' matter of legislative grace', is a statutorily created forum not traditionally open to the public. Seattle Times i CSA, 467 U.S. at 32, 104 S.Ct. at 2207. Although information exchanged in pretrial discovery would often generate considerable public interest if publicly disseminated, private litigants,have protectable privacy interests in confidential information disclosed through discovery. Eng Seattle Times Co., 467 U.S. at 35, 104 S.Ct. at 2208."
Thus, at least through the discovery stage of this proceeding, intervenors cannot be heard to complain that restraints on their dissemination of information discovered in pretrial proceedings is unreasonable under the terms of this Board's protective order.
- 2. The Protective Order Passes Constitutional Muster The protective order entered by this Board passes constitutional muster. Mass AG urges, without citation to a single authority, that due process rights of the public at 1 ;
large are violated by the protective order because each member of the public is a potential future intervenor in the Seabrook offsite licensing proceeding.5 The implications of this assertion are absurd. If he were correct, no protective order could ever issue since there would always be hypothetical "potential intervenors" or informants whom publicity might induce to file contentions. This is, of course, contrary to the provisions of 10 CFR 9 2.740(c),
which allow th's Board to fashion protective ordars. Further, the Staff could never withhold licensing information from the public and the provisions of 10 CFR S 2.790 would have to be struck down as unconstitutional. Such is clearly not the law. 212 Black Panther Party v. Kehoe, 42 Cal. App.3d 645, 117 Cal. Rptr. 106 (1974) (government may constitutionally withhold information in order to "protect [] private reputations against notoriety emanating from ' crank' or malicious accusations").
The notion that persons are being excluded from participation in these proceedings is unfounded. Anyone with a sufficient interest in litigation of the SPMC may obtain access to the protected information either by successfully
! attempting to intervene at this stage or by working with a 4
currently acth e party. The important point is that such an 5Despite the fact that this cact. is also being tried in the public press, the issue of the protective order is before this Board. The Mass AG's unsubstantiated assertion that "substantial public scepticism abounds about the utility plan" simply is not relevant to this issue.
interested person will then be accountable to this Board under the protective order for proper use of the information.
The astonishing statement is made: "There is no sound basis for a protective order which offers full hearing rights and opportunities only to the current parties." Mass AG Memorandum at 13. No citation is required for the proposition that non-parties are not entitled to a hearing.
Mass AG asserts, again without citation to any authority, that his own due process rights are violated by not being able to spread information about providers beyond his advisors and experts. It is unclear how the supposed violation arises. Is Mass AG claiming a constitutional right to contact potentially hundreds of a provider's past, current, and future business associates, clients, neighbors, employees, employers, and discuss in detail with them the provider's participation in emergency planning for Seabrook?
Or is Mass AG maintaining that he cannot properly investigate the providers' existence or resources without recourse to publicity to potentially hundreds of "third parties of all sorts"? Mass AG Memorandum at 14. In either event, the claim is insubstantial.
Mass AG's suggestion that extending the temporary protective order would somehow violate the First Amendment of the Federal Constitution is absurd. As the very case he cites points out, an adjudicative body's control over discovery information "does not raise the same spectre of l
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governmental censorship that such control might suggest in other contexts." Seattle Times Co. v. Rhinehart, 467 U.S.
20, 32 (1984). Rather than a "strict" or "heightened" scrutiny, as Mass AG would have it, a protective order need pass only three requirements to survive a First Amendment challenge: 1) it must be based on a showing of good cause;
- 2) it must be limited to the discovery context; and 3) it must not restrict dissemination of information obtained by means other than discovery. Anderson v. crvovac. Inc., 805 F.2d 1, 7 (1st Cir. 1986) (applying test laid down in Seattle Times, supra); see also H.S. Gere & Sons. Inc. v. Frev, 400 Mass. 326, 509 N.E.2d 271 (1987) (protecting litigants' expectation of privacy). The protective order in this case meets these tests.
As to Mass AG's conclusory claims that the protective order violates Section 189(a) (1) of the Atomic Energy Act and the equal protection clause, Applicants are at a loss to respond, since they do not apprehend any bases for these claims.
- 3. Federal and State Laws Regarding Government Disclosure of Information Are Not Acolicable Federal and state laws regarding the rules for federal and state governments' disclosure of information to the public are not applicable to the matter before this Board.
The information Mass AG seeks to publicize generally came from the Applicants, not the government, and there is no presumption that information in the possession of private
companies, and considered confidential by those companies, is available to members of the public upon demand. Furthermore, the question here is not whether to disclose information to requesters -- they already possess it -- but whether to prohibit their further dissemination of the information beyond their helpers, advisors, and experts.
Even if the confidential information were being withheld by a government agency in the face of a request by a member of the public -- which is not the case here -- both federal and state laws would counsel nondisclosure of the information.
Contrary to Mass AG's assertions,6 Massachusetts law does indeed prevent governmental disclosure of a person's very name and address, if the context shows that disclosure of tne person's name and address would constitute an unwarrantable invasion of privacy. Torres v. Attorney General, 391 Mass. 1, 9 (1984) (exemplary damages and attorneys fees awarded for violation of individual's privacy right in information concerning his whereabouts). In fact, in one context, Mass AG has officially opined "that disclosure of personal information concerning an employee's 6In his brief Mass AG stated: "The mere disclosure of l the names and addresses of the companies and individuals who l
will be relied upon for support and services violates no i
privacy rights whatsoever. . . . As to the names and addressed [ sic] of individuals, especially but not limited to those who have duties and responsibilities to the public, there is no protectable privacy interest whatsoever under Massachusetts law." Mass AG Memorandum at 10.
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name and home address and his family situation is information in which the employee has a legitimate privacy interest".
1977/78 Op. Atty. Gen. No. 9 at 91. And indeed, the Attorney General of the Commonwealth of Massachusetts has, in the past, been enjoined from disseminating and ordered to destroy all his copies of documents containing information as to an individual's whereabouts. Torres v. Attorney General, suora, at 4-5.
Mara AG cited cases holding that public employees have diminished privacy rights in certain kinds of personal information, Hastinas & Sons Publishina Co. v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978) (public employees' salaries) ; Pottle v. School Comm. of Braintree, 395 Mass. 861
- (1985) (public employees' names and addresses). Other public employees' names were found to warrant protection from disclosure, however, in Attorney General v. School Committee l of Northamoton, 375 Mass. 127 (1978). There the Supreme Judicial Court approved the trial judge's decision to permit or deny disclosure on a case by case basis of names of applicants for the job of school superintendent. Idi at 132.
The judge denied disclosure where a showing was made that an applicant's privacy might be invaded, noting possible adverse effects of disclosure on an applicant's attempt to obtain future employment, ability to function in his job, and standing in the community. Id2 In short, Massachusetts law protects from governmental disclosure names and addresses if
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the context indicates that an individual's privacy would be invaded thereby. Such a showing has been made here.
The Freedom of Information Act (FOIA), 5 U.S.C. S 552 (b) (6) , also exempts from disclosure "files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" and thus would also counsel nondisclosure in this case. Public interest in further dissemination of the confidential information is not as weighty as Mass AG claims, particularly at the pretrial stage, ggg Korean Airlines Disaster of Seotember 1. 1983 and In re Alexander ,
Grant & Co. Litication, supra at 9, and is outweighed by the providers' need of protection from harassment, intimidation and other disturbances.
- 4. Mass AG's General Desire to Speak Out on Interestino Issues Should Not Control Finally, we are left with Mass AG's self-proclaimed need to "speak out on the many issues of concerned (sic] to the public in the Commonwealth." Mass AG Memorandum at 7 n.3.
How this need is relevant to the proceedings, or why it requires exposing providers to possible harassment and intimidation, is unclear from Mass AG's brief. Also unclear is the source of this need. Certainly it is not the laws of the Commonwealth. Indeed, for a century it has been clearly established that the Mass AG has no obligation to share his opinions with private citizens, and that private citizens are free to ignore that opinion if he does volunteer it. 1 Op.
Atty. Gen. 1898 at 563. Applicants respectfully suggest that
the Board follow the lead of Massachusetts in this matter, and ignore Mass AG's general desire to speak ex cathedra and ex curia.
Conclusion The temporary protective order should be extended.7 ,
Respectfully submitt3d,
.j Titomps G. Dig' nan, Jr.
George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 l
7 Mass AG called upon the Board to "compel the intervenors to produce all redacted aspects of the SPMC which have not already been produced," Mass AG Memorandum at 15, but clearly meant to request production of the Applicants.
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00CMETED
. U5NRC CERTIFICATE OF SERVICE 16 F08 29 P3 :56 I, Kathryn A. Selleck, one of the attorneys f he. . . .
Applicants herein, hereby certify-that on February ff98Bgf,4Pill I made service of the within document by mailing co esaglyeq thereof, postage prepaid, to:
Administrative Judge Ivan W. Smith, Stephen E. Merrill, Esquire Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Judge Gustave A. Linenberger, Jr. Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Robert Carrigg, Chairman Diane Curran, Esquire Board of Selectmen Andrea C. Ferster, Esquire Town Office Harmon & Weiss Atlantic Avenue Suite 430 North Hampton, NH 03862 2001 S Street, N.W.
Washington, DC 20009 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regalatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 l .~
Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Flr.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S. Matthews 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 Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Harpe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker 442 John W. McCormack Post Fine, Good & Mizner Office and court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 i
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4 Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913 L.
IQhth[yn'A. Selletk
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