ML20204G900
| ML20204G900 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/13/1988 |
| From: | Bergquist S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7321 OL, NUDOCS 8810240255 | |
| Download: ML20204G900 (16) | |
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- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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REF0PF THE ATOMIC SAFETY AND LICENSING BOARD l l, b
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! In the Matter of 1 Docket No. 50-443 OL l
- PUBLIC SERVICE COMPANY 0F 50-444 OL l
- NEW HAMPSHIRE, ej al., Offsite Emergency Planning i I (Seabrook Station. Units 1 and 2)
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< i NRC STAFF'S MOTION TO COMPEL ANSWERS I TO INTERROGATORIES AND PRODUCTION l l i 0F DOCUMENTS BY THE TOWN OF L'EST NEWBURY l
Pursuant to 10 C.F.R. I 2.740(f), the NRC Staff hereby moves that the :
l Town of West Newbury ("TOWN") be coepelled to answer certain interroga- l tories and proJJee Certain dOCunents requested in "NRC Staff's First Set ;
of Interregatories and First Request for Production of Documents to the i I
Towns of Aresbury. Newbury. Salisbury. West Newbury, and Merrinac, and the CityofNewburyport"(September 6.1908)(hereinafter"Staff'sInterroga-tories"). On October 5, 1988. TOWN filed its interrogatory answers and [
a motion for protective order. TCWN produced no documents and objected to nary of the Staff's Interrogatories. While TOWN did provide partial 4
l answers to some of the Staff's interrogatories, its responses were often j a l i incoeplete, evasive, or ambiguous. For the reasons set forth below TOWN !
should be compelled to provide a proper and complete response to the !
l Staff's discovery request. f j
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I 1. Motion to Compel Production of Documents at the Office of j the General Counsel at the NRC The NRC Staff prefaced its Interrneatories by asHng that l
' documents requested be produced "at the Hearing Division, Office of the General Counsel Nuclear Regulatory Comission,11555 Rockville Pike, 1
Rockville, Maryland."
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i To this, TOWN responded: l TOWN objects to the Staff's request that the production I l
of any documents take place at the Staff offices in i Rockville, Maryland as unduly burdensone. Any relevant ,
] documents may be inspected in TOWN during the discovery i
oeriod, during nomal business hours, at a mutually ;
agreeable time, following reasenable notice to TOWN.
The ebjection is without valid foundation, and TOWN should be 4
l required to produce responsive documents in accordance with the Staff request, pursuant to 10 C.F.R. I 2.741(c), document production shall cccur at "a reaserable time, place, and manner." There is nothirg
) reascnable in requiring the Staff to travel to TOWN and presumably to }
1 every other Interver.or and Governmental entity's many different offices. l I
j to inspect relevant docur.ents. Consideration of time and travel expense !
versus the relative burden on TOWN resultant from sending its documents to
! i the Staff ir, compliarce with the subject request weigh evenshelmingly in I
j favor of th' request's reasonableness. Indeed, TOWN makes no attempt to identify or enumerate the nuwber of documents involved in justification of its objection but, rather, refers in the most general tems to undue
{ burden. Such an unsubstantiated and conclusory assertion should be disregarded, and TOWN should be compelled to produce documents at the
'Stafi i offices as indicated . Nonetheiess, the Staff notes that it is l w m ing to ,eceive TOWN s document ,,oduction at a centrai deco,ent l i i
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- depository, should the Intervenors and interested State and local l
.I governments agree to establish the same. ;
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j 2. Motion to C,oepel Answers to specific Interrogatories l l a. Interrogatory 1. l i
! Interrogatory 1 and TOWN's response read as follows: ;
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) 1. Identify and supply each document containing l
) procedures, plans, orders, instructions, directions, and 5 i training materials of the Intervennrs for any action in !
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! a) a radiological emergency or disaster sterring
- from a nuclear plant accident whether the plant is ;
j located inside or outside of Massachusettst !
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b) other radiological emergencias or disasterst I j and }
l c) all other "emergencies" or disasters as j defined in paragraph 4 of the above definitions.
I l ANSWER: ((
i l 1. TOW" ebjects to this interrogatory en the l grounds that it it overbroad and unduly burdensome. :
i Witheut waiving these objections TOWN states the i j following: l (a.b) TOWN has nn documents reflecting er
, referring to any emergency planning for a radiological ;
< emergency other than drafts of plant provided to the f
] TOWN by the app 11 carts which are in the possession of (
i the applicants and. TOWN believes, in the possessien of !
i the NRC staff. j
! (c) TOWN has a Severe 5 toms Erergency l 1 Response Plan, prepared by the Office of Emergency 1 Preparedress. West Newbury Civil Defense, hcVember, 1966. The plan was approved by the Board of Selectmen
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Interregatory 1 subsection (c) requests relevant infomation and documentt, regarding all
- emergencies " trrespective of whether TOWN .
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has a coved any emergency or disaster plan. Accordingly, TOWN's response oion (c) fails to provide a complete respcrse to this interrogatory.
.urther, TOWN's general assertions of overbreadth and undue aeness regarding this Interrogatory must be rejected. A request for documents should not be deemed objectionable solely b.cause there might be some burden attendant to their production. Long Island Lighting Co. (Shoreham t'uclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,1155 (1982). In any event, the assertion that undue burden is involved in searching for the defined documents is utterly groundless. With respect to TOWN'; allegation of overbreadth, it is pertinent to cite the provi-siens of 10 C.F.R. 6 2.740(b)(1):
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding . . . including the exist-ence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
Answers to interrogatories or requests for documents which do not comply with this provision are inadequate. Illinois Power Co. (Clinton Power Station, Unit 1), LBP-81-61,14 NRC 1735,1737-1738 (1981). Further, a Board may require a party, who has been served with a discovery request which it believes is overly broad, to explain why the request is too broad and, if feasible, to interpret the request in a reasonable fashion and supply documents (or answer interrogatories) within the realm of reason.
Texas Utilities Electric Co_. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-41, 22 NRC 765, 760 (1985). TOWN fails to demon-
'strat'e in what respect Interrogatory 1 is overly broad. In sum, TOWN 4 should be compelled to respond to this Interrogatory in its entirety, i
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- b. Interrogatory 2 Interrogatory 2 and TOWN's response read as follows:
- 2. k'ith regard to each document set out in response to Interrogatory 1, describe the functions in emergencies of any of the following categories of personnel:
a) State and local police, to include persons employed full or part time, and both private and public security personnel, such as special officers and deputies; b) Civil Defense personnel; 4
c) Professional or volunteer fire-fighting personnel; d) First aid and rescue personnel; e) local support services personnel including Civil Defense / Emergency Service personnel; f) Medical support persennel; g) Emergency Service personnel; h) Health and Environmental Department personnel; i) National Guard, Militia or Reserve personnel; j) Boards of Education, School Boards or Depart-ments, and teachers; l l
k) Employees of all other State, local or municipal departments or agencies;
- 1) Individuals obligated to provide assistance pursuant to agreements to aid between municipalities or other government units, or pursuant to other agreements; and m) Individuals available to provide assistance j pursuant to agreements to aid between municipalities or ,
other government units, or pursuant to other agreements, l
,ANSWEF: )
- 2. A copy of the document referred to in 1(c) will be made available and the document speaks for l
itself.
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TOWN's limitation of its answer to the plan identified in response to Interrogatory 1(c) as having been approved by the town, renders its answer to Interrogatory 2 unsatisfactory. Absent a complete :
production of relevant documents, TOWN's assertion that the document (s) speak for themselves cannot be evaluated. Further, to the extent any additional information may exist beyond that contained in the plans themselves, this response is incomplete and evasive. For the reasons discussed regarding Interrogatory 1, supra, TOWN should be compelled to respond to Interrogatory 2, and to provide specific data requested by the '
Staff regarding personnel functions and availability in the event of an emergency.
, c. Interrogatory 3 Interrogatory 3 and TOWN's response read as follows:
- 3. Set out the training each of the category of personnel set out in Interrogatory 2 has to perform its function in an "emergency."
ANSWER:
- 3. TOWN objects on the grounds that this inter- '
rogatory is overbroad and unduly burdensome. Without waiving these objections, TOWN answers that the Severe Storms Response Plan referred to above was exercised as part of a statewide training exercise in June 1988.
TOWN further answers that all full-time police officers have received full-time academy training through the ,
Massachusetts Criminal Justice Training Council and <
part time officers have received intertnittent academy training. All officers receive firearms training on an annual basis. Both police officers and firefighters !
have received first responder training. Some police and fire personnel have received EMT training.
TOWN has failed to demonstrate that this request is "overbroad q nd u'nduly burdensome". Further, it has failed to respond substantively i
to this request in any meaningful way. In light of inadequacies pointed
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out with respect to TOWN's answers to Interrogatories 1 and 2. TOWN has failed to provide a satisfactory response to Interrogatory 3. For the reasons set forth above with regard to TOWN's failure to respond completely to Interrogatories 1 and 2. TOWN shculd be compelled to answer this Interrogatory.
- d. Interrogatory 15 Interrogatory 15 and TOWN's response read as follows:
- 15. Identify the provisions of federal or state law which preclude activation of the EBS at the discretion of management of AM, FM, and television stations, in connection with day-to-day emergency situations posing a threat to the safety of life and property, such as hurricanes, floods, icing conditions, heavy snows, fires, toxic gases, power failures, industrial explosions, and civil disorders.
ANSWER:
- 15. TOWN objec's to this interrogatory as over-broad and unduly bur' some, as seeking work product or legal opinions o' o,.. 4 -s, and as seeking to have TOWN do legal rer. arch to provide inform tion in the public domain which is as available to the Staff as it is to the TOWN.
TOWN's refusal to answer Interrogatory 15 on the various grounds that it states cust be rejected for the reasons set forth beler with regard to TOWN's responses to Interrogatories 17 to 20. TOWN should be compelled to answer Interrogatory 15.
- e. Interrogatories 17 to 20 Interrogatories 17 to 20 and TOWN's responses thereto, read as follows:
- 17. With respect to each docunent identified in i
. . Interrogatory 1, identify any Federal or state law or regulation pursuant to which each such document was prepared. :
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ANSWER:
- 17. The document speaks for itself.
- 18. Identify all Massachusetts statutes and regula-tions, and all lecal regulations, ordinances or other provisions, (a) concerning actions to be taken by state or local authorities, or those acting in their beh> 'f in the event of emergencies, including the preparation of plans for actions to be taken in emergencies; (b) con-cerning any prohibitions on any such actions or plans; and (c) concerning any prohibitions on any person or organization other than state or local authorities with respect to any such actions or plans.
ANSWER:
- 18. See Answer to I.nterrogatory 15.
- 19. Set out the conditions, including citations to all applicable provisions of state ard local laws and regulations (a) under which state and local authorities may permit private individuals or organizations to take
) action on their behalf in an emergency; and (b) under which state and local authorities are precluded from authorizing private individuals or organizations from taking action en their behalf in an emergency.
ANSWER:
- 19. See Answer to Interrogatory 15,
- 20. Set out examples illustratin the conditions described in Interrogatory 19(a) and (g). b ANSWER:
- 20. See Answer to Interrogatory 15.
The Staff requests that TOWN be compelled to respond to Interrogatories 15 and 17 to 20 for the reasons discussed above with respect to TOWN's responses to Interrogatory 1. Further, the statutes, regulations, and ordinances referred to in Interrogatories 15, 17 and 18 canno,t be so numerous as to make a response to these Interrogatories unduly onerous. The same is true with respect to the conditions and examples requested under Interrogatories 19-20. There is no merit in j
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9-TOWN's assertion that the identification of federal and state laws relied upon by TOWN in challenging the SPMC calls for "work product", "legal opinions" or "legal research" by TOWN. The Staff does not seek TOWN's legal conclusions or work product, but only an identification of the bases l for TOWN's challenge to the SPMC. Only after those bases are identified can the Board and other parties determine whether there is merit to the challenge.
TOWN has failed to demonstrate that these Interrogatories impose any undue burden on TOWN or are overly broad. Further, interrogatories served to determine the "regulatory' basis" or "legal theory" for a conten-tien are appropriate and inportant. Duke Power Co._ (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1946 (1982). And an intervenor's mere assertion that the material it is withholding consti-tutes attorney work product is insufficient to meet the burden of proving it is entitled to protection from discovery. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17,17 NRC 490, 495 (1983). Interrogatories 15, 17 to 20 are relevant to this proceeding, and TOWN should b :ompelled to respond thereto. j
- f. Interrogatories 23 and 24 j Interrogatories 23 and 24, and TOWN's responses, read as follows:
l 23. Identify all studies conducted during the last five years concerning improving the movement of traffic in and out of "the beach" area. Provide a copy of all such studies. 1 ANSWER:
,. . 23. TOWN objects on the grounds that this inter-rogatory is overly broad and burdensome. Without waiving these objections, TOWN answers that it has conducted no such studies, i
- 24. Identify all studies conducted during the last five years concerning improving the movement of traffic in the event of emergencies within the Seabrook Station EPZ which include estimates of the volume of traffic or the time within which traffic can be evacuated. Provide a copy of all such studies.
ANSWER:
- 24. TOWN objects on the grounds that this inter-rogatory is overbroad and unduly burdensome. Without waiving these objections, TOWN answers that it has conducted no such studies.
TOWN has misconstrued Interrogatories 23 and 24, which request identification of "all" studies conducted, not "all studies ennducted by TOWN." Further, the studies sought *are clearly relevant to the issues to be litigated in this proceeding. TOWN has failed to demonstrate that these interrogatories are "overbroad and unduly burdensome". For these reasons, and for the reasons discussed above concerning TOWN's "over-breadth" and "burden" objections to Interrogatory'1, TOWN should be compelled to respond to these interrogatories.
- g. Interrog& tory 25 Interrogatory 25, and TOWN's response, read as follows:
- 25. Identify all State and local laws and regula-tions concerning the follewing actions to be taken in the event of radiological or other emergencies (see defini-tion 4): (1) guiding traffic; (2) blockiir roadways, erecting barriers in roadways, and channel "; traffic; (3) posting traffic signs on roadways; (4) .emoving obstructions from public roadways, including tewing private vehicles; (5) activating sirens and directing the broadcast of EBS' messages; (6) making decisions and recorrendations to the public concerning protecticn actions for the ingestion exposure pathways; (8) making decisions and recomendations to the public concerning recovery and reentry; (9) dispensing fuel from tank
, , trucks to automobiles along roadsides; and (10) perfonn-ing access control at the Emergency Operations Center, the relocation centers, and the EPZ perimeters.
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ANSWER:
- 25. See answer to interrogatory 15.
TOWN should be compelled to res.-osd to Interrogatory 25, for the reasons set forth in the Staff's motion to compel responses to Interroga-tories 15 and 18.
- h. Interrogatory 26 Interrogatory 26, and TOWN's response, are:
- 26. Identify all studies performed during the last five years concerning the availability and possible use of sirens and other means of emergency communication to the public in the evant o' emergencies. Provide a copy of all such studies.
ANSWER:
- 26. TOWN objects on the grounds that this inter-rogatory is overbroad and unduly burdensome. Without waiving these objections. TOWN answers that it has conducted no such studies.
TOWN has misconstrued this Interrogatory as it did Interroga-tories 23 and 24, to refer only to studies conducted by TOWN. TOWN's reiterated allegations of overbreadth and undue burden are unsupported, and should be rejected for want of specificity and substantiation. A response to Interrogatory 26 is merited and should be compelled,
- i. Interrogatory 27 Interrogatory 27, and TOWN's response are: !
- 27. Identify all sirens or other means of emergency I communication in the Seabrook EPZ which can be heard by 1 the general public. '
ANSWER:
,. . 27. TOWN objects on the grounds that this inter- j rogatory is overbroad and unduly burdensome. Without l waiving these objections TOWN answers that it has no l knowledge of all sirens or other means of energency '
communication in the Seabrook EPZ which can be heard by
the general public. There are two firehorns in West Newbury that can be heard by part of the general public in West Newbury and sirens on fire and police vehicles.
This Interrogatory is neither overbroad nor unduly burdensome, and TOWN gives no specific reason why it should so be considered. Also, while TOWN disclaims knowledge of "all" sirens or means of emergency cornunication, it fails to set forth the full scope of the infomation which it does know or possess. TOWN's response to Interrogatory 27 should be compelled.
J. Interrogatory 28 Interrogatory 28, and TOWT s response, are as follows:
- 28. Identify all studies performed by Intervenors during the last five years concerning planning for emergencies. Produce a copy of all such studies.
ANSWEP.:
- 28. See Answer to Interrogatory 1.
TOWN's refusal to respond to Interrogatory 28 is objectionable for the reasons stated by the Staff with regard to Interrogatory 1. A response to Interrogatory 28 sheuld be compelled.
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SUMMARY
j TOWN has failed to provide satisfactory respenses to the interroga- l tories set forth above, thus precluding the discovery of potentially critical facts in this proceeding. Given the rebuttable nature of the presumption inherent in the "realism rule", production of this infomation is of vital importance for this litigatii.a as to the adequacy of the
'SPMC.' TOWN's unsupported allegations of burdensomeness, overbreadth, and O
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irrelevancy should be rejected, and TOWN should be compelled to respond to ,
the Interrogctories identified herein.
Respectfully submitted,
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1 ke Stephen A. Bergquist .
Counsel for NRC Staff Dated at Rockville, Maryland this 13th day of October,1988 i ,
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NLME ri.P UWK UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
In the Matter of ) Iock M i DocketNos.50-443.$L.f,[l
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PUBLIC SERVICE COMPANY OF S0-444 OL NEW HAMPSHIRE, et al_. Off-site Emergency Planning (SeabrookStation, Units 1and2) i l
C,ERTIFICATE OF SERVICE l I I hereby certify that copies of "NRC STAFF'S MOTION TO COMPtl ANSWERS TO 1 INTERROGATORIES AND PRODUCTION OF DOCUMENTS BY THE TOWN OF WEST NEWBURY j above-captioned proceeding have been served on the following by deposit in the United States mail, first class or,i as indicated by an asterisk, by deposit in j the Nuclear Regulatory Commission's internal mail system, this 13th day of j October 1988: 1 Ivan W. Smith, Chairman
- Atomic Safety and Licensing Administrative Judge Board Panel (1)*
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission ,
U.S. Nuclear Regulatory Comission Washington, DC 20555 !
Washington, DC 20555 Docketing and Service Section*
Gustave A. Linenberger, Jr.* Office of the Secretary .
Administrative Judge U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comissinn Washington, DC 20555 Thomas G. Dignan, Jr. , Esq.
Robert K. Gad, III, Esq.
Dr. Jerry Harbour
- Ropes & Gray Administrative Judge 225 Franklin Street Atomic Safety & Licensing Board Boston, MA 02110 U.S. Nuclear Regulatory Comission
, Washington, DC 20555 H. J. Flynn, Esq. !
i Assistant General Counsel :
i Atomic Safety and Licensing Federal Emergency Management Agency Appeal Panel (5)* 500 C Street, S.W. ,
U.S. Nuclear Regulatory Comission Washington, DC 20472 ;
Washington, DC 20555 ;
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Philip Ahren, Esq. Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street ,
State House Station Portsmouth, NH 03801 '
Augusta. ME 04333 R. Scott Hill-Whilton Carol S. Sneider, Esq. Lagoulis, Clark, Hill-Whilton Assistant Attorney General & McGuire
- Office of the Attorney Cencral 79 State Street One Ashburton Place, 19th Floor Newburyport, MA 01950 Boston, MA 02108 Allen Lampert
, George Dana Bisbee, Esq. Civil Defense Director Assistant Attorney General Town of Brentwood ;
Office of the Attorney General 20 Franklin 25 Capitol Street Exeter, NH 03833 Concord, NH 03301 l
William Artnstrong
.i Ellyn R. Weiss, Esq. Civil Defense Director Diane Curran. Esq. Town of Exeter Harmon & Weiss 10 Front Street l 2001 S Street, NW Exeter, NH 03833 Suite 430 Washington, DC 20009 Gary W. Holmes, Esq.
Holmes ! Ellis Robert A. Backus, Esq. 47 Winnacunnet Road Backus, Meyer & Solomon Hampton, NH 03842 ,
116 Lowell Street t Manchester, NH 03106 J. P. Nadeau ;
Board of Selectmen f Paul McEachern, Esq. 10 Central Street Matthew T. Brock, Esq. Rye, NH 03870 Shaines & McEachern ,
25 Maplewood Avenue Judith H. Mizner, Esq. f P.O. Box 360 Silverglate, Gertner, Baker,
- Portsmouth, NH 03801 Fine, & Good l 88 Board Street I Charles P. Graham, Esq. Boston, MA 02110 i McKay, Murphy & Graham i l 100 Main Street Robert Carrigg, Chairtnan [
Amesbury, MA 01913 Board of Selectmen Town Office 4
Sandra Gavutis, Chairrnan Atlantic Avenue :
Board of Selectmen North Hanpton, NH 03870 l 1 RF0 #1, Box 1154 t Kensington, NH 03827 1
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William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 j Amesbury, MA 01913 Michael Santosuosso, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen ,
Board of Selectmen South Hampton, NH 03827 -
13-15 Newmarket Road l Durham, NH 03824 Ashod N. Amirian, Esq.
Town Counsel for Merrimac -
! , Hon. Gordon J. Humphrey 376 Main Street i United States Senate Haverhill, MA 08130 l 531 Hart Senate Office Building i Washington, DC 20510 Robert R. Pierce, Esq.*
Atomic Safety and Licensing Richard R. Donovan Board Panel Federal Emergency Management Anancy U.S. Nuclear Regulatory Comission Federal Regional Center Washington. 0.C. 20555 L 130 228th Street, S.W.
Bothell, Washington 98021-9796
, Stepherf A. Bergquist
[M V Counsel for NRC Staff l
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