ML20198T166

Response to Applicant 860428 Motion to Compel Answers to Interrogatories Addressed to Atty General of Commonwealth of Ma.Certificate of Svc Encl.Related Correspondence

ML20198T166
Person / Time
Site:	Seabrook
Issue date:	06/09/1986
From:	Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-483 OL, NUDOCS 8606110352
Download: ML20198T166 (9)

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3 f cy k INITED STAIRS OF # ERICA I NUCIEAR PJXULAlmY CGNISSICN

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BEIME 'l1E AIGIIC SAFFIY AND LICENSIIKI BOARD 4 d

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PUBLIC SERVICE CGIFANY OF ) Docket Nos. 50-443 OL NELY IIN.PSHIRE, et al . ) 50-444 OL

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(Seabrock Station, Units 1 and 2) )

NRC STAFF RESIMSE TO APPLICANIS' hMICN

'IO CII.FEL ANShEP.S TO INTERI0GAlmIES AURESSED TO 'ITE ATIGNEY GENEP.AL OF MASSAC10SETIS On April 28, 1986, the Applicants served upon the Attorney General of Massachusetts (" Massachusetts") interrogatories addrcsoing all the offsite emergency planning contentions admitted by the Licensing Board in its Order of April 1, 1986. On May 22nd, Massachusetts filed a slightly untimely answer O objecting to the interrogatories on the ground that Massachusetts is (at the present time) participating in this proceeding as an interested state pursuant to 10 CFR 52.715(c) and hence is not a party subject to discovery under the Commission's discovery rules (10 CFR $52.740 et seq.). On June 2nd, Applicants filed a Motica to Compel

-1/ According to the Board's Order of January 17, 1986, a response to the interrogatories was due by May 14, 1986. Applicants urge in their Motion to Compel that the Board should disregard any objections to the interrogatories filed by Massachusetts because of this untimeliness. While the Staff views the failure to meet scheduling requirements with some concern, the Staff does not oppose the filing by f,fassachusetts on timeliness grounds, g6110352860609 g ADOCK 05000443 PDR

1 discovery from Pfassachusetts. Although the Staff as a rule does not involve itself in discovery disputes between other parties , the Staff believes a response is warranted in this instance because of the nature of this dispute which involves the applicability of the Commission's discovery rules to interested governmental participants admitted under 82.715(c).

As noted, Massachusetts is currently participating in this proceeding under Section 2.715(c). That Section affords the representative of an interested governmental body "a reasonable opportunity to participate and to introdue evidence , interrogate witnesses, and advise the Commission without requiring the representative to take a position with respect 13 the issue." Such a representative is also given the right to file findings of fact and appeals. The Section further provides that the presiding officer in a proceeding "may require such representative to indicate with reasonable specificity, in advance of the hearing, the subject matters on which he desires to participate."

In objecting to the Applicants' interrogatories, Massachusetts does little more than note that the Commission's discovery rules apply only to parties, and that an interested state is not a party. Massachusetts does elaborate in a footnote that it "has not at this time indicated to the Board any subject area in which [it] intends to participate," nor has it adopted any admitted contentions or otherwise indicated a subject area in 'vhich it intends to participate. 2,/

-2/ While Massachusetts has not at this time identified any subject areas in which it intends to participate, neither has Massachusetts stated that it will not participate in the litigation of any of the admitted offsite emergency planning contentions.

For their part, Applicants in their Motion to Compel merely baldly assert that Section 2.715(c) participants are subject to all the rules of procedure and discovery, and that in any event the Board should direct that the interrogatories be answered under the Board's discretion, provided in Section 2.715(c), to require that Massachusetts identify the subject matters as to which it desires to participate.

The question of the applicability of the Commission's discovery rules to Section 2.715(c) participants is largely a novel one. The Staff notes et the outset that under the very terms of the regulations, there are clear differences between full parties admitted to a proceeding under Section 2.714 and participants admitted under Section 2.715(c). Not the least of these differences is the one adverted to by Massachusetts in its footnote: interested governmental entitles may participate without taking a position in the proceeding. Indeed, the State of Maine in this very proceeding has indicated that it does not feel compelled to respond to discovery because it does not at this time plan to take a position with regard to any of the contentions now admitted in the emergency planning phase of the proceeding. See " State of f faine Response to Applicants' Off-Site EP Interrogatories and Request for Production of Documents,"

May 16,1986. 3,/

While Section 2.715(c) participants need not be as involved in the proceeding as Section 2.714 parties, interested governmental participants clearly may play as active a role in a proceeding as they choose. Section 3/ Interestingly enough, Maine's filing indicates that the Applicants are satisfied by Maine's response and will not seek a motion to compel.

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2.715(c) participants may file contentions (as have many such participants in this very proceeding); they can put on direct evidence and cross-examine witnesses sponsored by other parties; and they may exercise appellate rights. However, the more a participant acts as a full party, the more that participant is bound by the procedural rules the Commission has established to regulate the behavior of parties. Thus if a Section 2.715(c) participant wishes to submit an issue for consideration in a proceeding, "it is bound by the same requirements for timeliness, advance notice and specificity as are other parties, so as to enable the Board and other parties to fairly prepare for and address such issues in the framework of an adjudicatory proceeding."

Culf States Utilities Company (River Bend Station , Units 1 and 2),

LBP-76-32, 4 NRC 293, 294 (1976). If such a participant wishes to inject an issue into a proceeding after the record is closed, it may be held to the tests applicable to late-filed contentions and reopening a record.

Long Island Lighting Company, (Shoreham Station , Unit 1), LBP-83-30.

17 NRC 1132 (1983). Similarly, a Section 2.715(c) participant must follow all the applicable procedural rules if it wishes to prosecute an appeal.

Gulf States Utilities Company (River Bend Station, Units 1 and 2),

ALAB-317, 3 NRC 175,180 n.7 (1976).

The Staff submits that similar logic should be used in determining whether discovery may be had against an interested governmental participant. As the Appeal Board has noted , discovery in NRC proceedings serves the same purpose as discovery in any trial: it enables parties to more adequately prepare for litigation which in turn increase parties ability to develop a complete record while cutting down on

4 unnecessary inconvenience, surprise and expense during trial.

Pennsylvania Power and Light Company (Susquehanna Station , Units 1 and 2), A L AB-613, 12 NRC 317, 322 (1980). Certainly it would seem anomalous to allow a Section 2.715(c) party to inject an issue into a proceeding, present witnesses on the issue , and yet prohibit that participant from gaining discovery in order to help it prepare its case.

It seems equally unreasonable to deny any other party the right to obtain discovery against such a participant so as to more properly respond to any concerns that might be involved in litigation. If in fact a Section 2.715(c) participant plans to take an active role in the litigation of an issue , the analagous case law and common logic would both indicate that the Section 2.715(c) participant should have the right to pursue discovery and the responsibihty to respond to discovery.

Applying this analysis to the instant Motion to Compel, the Staff submits that the proper varse for the Board to follow at this time is to inquire of Massachusetts how the State wishes to proceed during the litigation. If Massachusetts wishes to present a direct case on any of the admitted contentions (something Massachusetts clearly has a right to do under Section 2.715(c)), it should be required to respond to the applicable interrogatories. Similarly, if Massachusetts plans to actively litigate any of the contentions through cross-examination, discovery is appropriate at this time. On the other hand, if Massachusetts does not intend at this time to take a position on any of the admitted contentions, Massachusetts should not be required to respond to the voluminous discovery request submitted by the Applicants, In any event, the first step is for Massachusetts to indicate what role it wishes to play in the

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upcoming litigation; Applicants' Motion to Compel can then be ruled upon accordingly.

Respectfully submitted,

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Robert G. Pcrlis Counsel for NRC Staff Dated at Bethesda, Maryland this 9th day of June,1986 I

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V UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD i

In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW IIAMPSIIIRE, et__al.

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(Seabrook Station, Units 1 'and 2) ) ,

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g CERTIFICATE OF SERVICE '

I hereby certify that copics of "NRC STAFF RESPONSE TO APPLICANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES ADDRESSED TO THE ATTORNEY GENERAL OF MASSACHUSETTS" in the above-captioned proceeding have been served on the following by deposit in the United States mcil, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Cocmission's internal mail system, this 9th day of June, 1986.

6 l'elen lloyt, Esq. , Chairri.an* Dr. Emmeth A. Luebke*

Administrative Judge Administrative Jud20 Atomic Safety and Licensing Board Atomic Safety and Li2ensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry liarbour* Ms. Carol Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board ' Office of the Attorney General U.S. Nuclear Regulatory Commission IOne Ashburton Place,19th Floor Washington, D.C. 20555 Boston, MA 02108 Beverly Hollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General Hampton, Nil 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Dox 1154 Concord, NH 03301-6397 Kensington, NH 03827 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301

' Calvin A. Canney, City Manager Allen Lampert City Hall Civil Defense Director l 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 330 Manchester, NH 03105 Diane Curran, Esq.

Harmon & Weiss Robert A. Backus, Esq. 2001 S Street, N.W.

Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington , D.C. 20009 Manchester, NH 03106 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02100 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq. Thomas G. Dignan, Jr., Esq.

Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Jane Doughty Atomic Safety and Licensing Seacenst Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, D.C. 20555 Atomic Safety and Licensing Paul McEachern, Esq.

Appeal Panel

• Matthew T. Brock, Esq.

U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C. 20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801

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' Docketing and Service Section* William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street Exeter, Nif 03833, Maynard L. Young, Chairman '

Doard of Selectmen Peter J. Matthevrs, Mayor 10 Central Rcad City Hall Eye, Nil 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William' S. Lord Doard of Selectmen Board of Selectmen South flampton. Ulf 03827 Town IIall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North ifampton, NH 038G2 R. K. Gad III, Esq. ,

Gary W. Holmes, Esq.

Ropes & Gray Holmes a~ Ellis 4 225 Franklin Street 47 Winnacunnet Road Doston, MA 02110 '

Hampton, NH 03842 l.

Robert G. Perlfs Counsel for NRC Staff

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