ML20198J878

Motion to Compel Response to Intervenor 860430 Interrogatories.Related Correspondence

ML20198J878
Person / Time
Site:	Seabrook
Issue date:	05/27/1986
From:	Curran D HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20198J864	List: ML20198J858 ML20198J878
References
OL, NUDOCS 8606030238
Download: ML20198J878 (5)

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DtiM AD WMtttwohDEAM Dated: \ Ok May2J,'1986 q)

UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD MAY 29198P

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New Hampshire, et al. )

) Docket Nos. 50-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) )

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NECNP'S MOTION TO COMPEL RESPONSE TO INTERROGATORIES On April 30, 1986, NECNP filed and served by federal express interrogatories upon Applicants. Copies of these interrogatories were also served on the Board. For purposes of this motion, they are incorporated herein by reference.

On May 13, 1986, Applicants filed an Answer and a Motion for Protective Order with respect to NECNP's Question No. 1(d) requesting Applicants .to " Identify all persons you may call as witnesses on each of these contentions during these proceedings... and identify and describe any documents and the portions thereof that they may rely on for their testimony." l Applicants objected to the above question as follows: l I

" Objected to insofar as it calls for fact witnesses."

NECNP believes that disclosure of the names of Applicants' fact witnesses is necessary in order to enable it to adequately prepare for the hearing.

Under Federal Rule of Civil Procedure B606030238 860527 3 PDR ADOCK 0D000 G

26 1 , it is within a court's discretion to compel disclosure of lay witness lists. Brennan v.

Engineered Products, Inc., 506 F.2d 299, 3 03 n.2 (8 th Ci r. 1974).

A court will order disclosure of the names of lay witnesses where such disclosure is necessary to make the hearing "'more a fair contest with the basic issues and facts disclosed to the fullest extent practicable' and to

-eliminate surprise and delay at trial." U.S. Eoual Employment Opportunity Commission v. Metropolitan Museum of Art, 8 0 F .R.D.

317, 318 (D.N.Y. 1978). As the court reasoned in Metropolitan Museum of Art, Disclosure of witness lists will enable a party to assess the strenths and weaknesses of his opponents case more completely and will therefore enable the party to prepare his own case more intelligently.

8 0 F . R.D. at 319.

Under the Federal rules, the discovery of fact witnesses is discretionary rather than mandatory based on the recognition that, in most cases, the parties will ultimately learn the names of lay witness at the pre-trial conference, which is frequently well in advance of trial. Hence, delaying disclosure until pre-trial generally still leaves the parties with sufficient time to prepare their cases.

However, in the case of the upcoming I

It is the practice of the NRC to apply Federal rules and practices in the absence of an analogous NRC rule. In the Matter of Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), 22 NRC 604 (1985) . In that decision, the Appeals board looked to Federal rule 26(b) (4) in ruling on various j j

discovery nonwitnessdisputes, experts. including requests for discovery of '

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! emergency plannrngl hearing, which is sche'duled for August 4, 1986, there will be no opportunity comparable to the pre-trial conference to enable;NECNP to learn the names of Applicants' lay witnesses. Wiihout!

these names, NECNP is hampered in its ability to locate and present its own rebuttal witnesses, or to prepare j cross-examination. Moreover, due to the expedited hearing schedule, the*brief period of time between the hearing date and the date the parties are to pre-file their testimony is not

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/ abf ficient to enable NECNP to prepare and present intelligently its case at the hearing. Co nsequen tly , it is not premature to I

\ compel disclosure of the names of Applicants' lay witnesses at this time.

WHEREFORE, pursuant do 10 CFR S 2.74b(f), NECNP moves the Board to enter an order compelling applicants to respond to  !

Questioh No. l(d) of NECNP's First Set of Interrogatories and l l

Requestd for Production on NHRERP and' identify all persons it may call as witnesses on each of NECNP's contentions, and identify and describe documents and the portions thereof that the

}/ witnesses may rely on for their testimony.

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i Respectfully submitted,

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QLbJ Qw Diane Curran HARMON & WEISS 2001 S Street, N.W.

Suite 430 May 27 1986 Washington, D.C. 20009 4 '

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CERTIFICATE OF SERVICE I certify that on May 27, 1986, copies of "New England Coalition on Nuclear Pollution's Motion to Compel Response to Interrogatories" were served on the following by first-class mail or as otherwise indicated: t

• Helen Hoyt, Esq. Rep. Roberta C. Pevear Administrative Judge Drinkwater Road Atomic Safety and Licensing Board Hampton Falls, NH 03844 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Dr. Emmeth A. Luebke Phillip Ahrens, Esq.

Administrative Judge Assistant Attorney Atomic Safety and Licensing Board General U.S. Nuclear Regulatory Commission State House, Station #6 Washington, D.C. 20555 Augusta, ME 04333

• Dr. Jerry Harbour Robert A. Backus, Esq.

Administrative Judge 111 Lowell Street ,

l Atomic Saf ety and Licensing Manchester, NH 03105 l Board )

U.S. Nuclear Regulatory Commission ** Thomas G. Dignan, Esq.

Washington, D. C . 20555 R.K. Gad, III, Es q.

Ropes and Gray

. Atomic Safety and Licensing 225 Franklin Street Board Panel Boston, MA 02110 l U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel Mr s. Anne E . Goodman U.S. Nuclear Regulatory Board of Selectmen Commission 13-15 New Market Rd. Washington, D.C. 20555 Durham, NH 03824 Docketing and Service *Sherwin E. Tu r k , Es q .

U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission William S. Lord, Selectman Washington, D. C. 20555 Town Hall - Friend Street Amesbury, MA 01913 Mr. Angie Machiros, Chairman Board of Selectmen Jane Doughty Newbury, MA 01950 SAPL 5 Market St.

Portsmouth, NH 03801

Carol S. Sneider, Esquire II . Joseph Flynn, Esq.

As sistant At torney Of fice of General Counsel General Federal Emergency Department of the Attorney Management Agency General 500 C Street, SW l Ashburton Place, 19th Floor Washington, D.C. 20472 Boston, MA 02108

• • George Dana Bisbee, Esq.

Edward A. Thomas Stephen E. Merrill, Es q .

FEMA Assistant Attorneys General 442 J.W. McCormack (POCH) State House Annex Boston, MA 02109 Concord, NH 03301 J. P. Nadeu, Selectman Allen Lampert Town of Rye Civil Defense Director 155 Washington Road Town of Brentwood Rye, NH 03870 Exeter, NH 03833 Sandra Gavutis Richard A. Hampe, Esq.

Town of Kensington Hampe and McNicholas RFD 1 Box 1154 35 Pleasant Street East Kensington, NH 03827 Concord, NH 03301 Richard E. Sullivan, Mayor Gary W. Holmes, Esquire City Hall Holmes & Ellis Newburyport, MA 01950 47 Winnacunent Rd Hampton, NH 03842 Alfred V. Sargent, Chairman Board of Selectmen William Armstrong Town of Salisbury, MA 01950 Civil Defense Director 10 Front Street Senator Gordon J. Humphrey Exeter, NH 03833 U.S. Senate Washington, D.C. 20510 Calvin A. Canney

( At tn: Tom Burack) City Manager City Hall Selectment of Northampton 126 Daniel Street Town of Northampton Portsmouth, NH 03801 New Hampshire 03862 Senator Gordon J. Humphrey Mathew T. Brock, Esq.

1 Pillsbury Street Shaines & McEachern Concord, NH 03301 P.O. Box 360 Maplewood Ave.

Michael Santosuosso, Chairman Portsmouth, NH 03801 Board of Selectmen Jewell St. , RFD #2 Stanley W. Knowles, Chairman South Hampton, NH 03842 Board of Selectmen P.O. Box 710 North Hampton, NH 03826

• - By Messenger

• • - By Federal Express _

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