ML20204G947
| ML20204G947 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/12/1988 |
| From: | Bergquist S, Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7322 OL, NUDOCS 8810240270 | |
| Download: ML20204G947 (31) | |
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' y;fy' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 OCT 19 P4 :19 BEFORE THE AT_0MIC SAFETY AND LICENSING BOARD ,g. j GCC6L In the Matter of l Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF )
50-444 OL ,
NEW HAMPSHIRE, et al,. Offsite Emergency Planning l (Seabrook Station, Units 1 and 2) )
l NRC STAFF'S M0!!0N TO COMPEL ANSWERS TO INTERROGATORIES AND THE PRODUCTION OF DOCUMENTS BY THE MASSACHUSETTS ATTORNEY GENERAL, ESSEX COUNTY, AND THE EXECUTIVE OFFICE OF PUBLIC SAFETY Pursuant to 10 C.F.R. 5 2.740(f), the NRC Staff hereby moves for an Order compelling answers to interrogatories and the production of documents by the Massachusetts Att, ley General, Essex County, and the Executive Office of Public Safety. This motion is necessitated by the Massachusetts Attorney Guneral's failure to file proper answers to interrogatories and to make any production of documents in response tr., the Staff's first discovery request directed to these entities, dated Sept '.aber 6,1988.1/ In response to that request, on September 27, 1988, _-
the Attorney General ("Mass AG") filed a set of answers in which he (1) objected to each and every one of the Staff's discovery requests.
(2) failed to provide even a single substantive response to the Staff's 1/ "NRC Staff's First Set of Interrogatories And First Request For Production Of Documents To The Attorney General Of The Comonwealth of Massachusetts, The Executive Office of Public Safety, and Essex County", filed September 6, 1988 (hereinafter referred to as "Staff Interrogatories").
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i discovery requests, and (3) in response to a few requests, indicated only that he was "in the process" of collecting documents or fonnulating a response. 2/
As more fully set forth below, the Staff submits that the objections :
raised by the Attorney General in support of his refusal to provide discovery are baseless and unsupported, and that his Response is in all other respects evasive and incomplete. Further, the Attorney General has ;
failed to move for a protective order, and his failure to provide a proper response to discovery may therefore not be excused, even if there had been !
any merit in the objections raised in his Response. 10 C.F.R. 6 2.740(f). !
I For these reasons, as more fully set forth below, the Attorney General should be compelled to file a proper response to the Staff's Interrogatories.
Finally, the Staff notes that the Attorney General, more than any single other Intervenor or interested State / municipal government, bears particular responsibility for providing discovery in this proceeding. The Attorney General, on behalf of himself and the Conrnonwealth of Massachusetts, has taken the lead in opposing the licensing of Seabrook Station and in pressing forward with this litigation; and the Attorney I I
General has more resources at his disposal than any other intervenor or State / municipal government in this proceeding. At the same time, the Attorney General's response to the Staff's discovery requests is more
-2/ "Massachusetts Attorney General James M. Shannon's Answers and Responses To The NRC Staff's First Set Of Interrogatories And First Request For Documents", dated September 27, 1988 (hereinafter "Mass AGResponse").
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. objectionable than that provided by any other municipal government to date. The efficient and proper conduct of this litigation requires that the Attorney General be required to file a complete and proper response to this discovery.
DISCUSSION In his Response, the Mass AG raised four "general objections" to the Staff's Interrogatories, objected to three paragraphs of instructions contained therein, objected to five definitions contained therein, and further objected and/or failed to respond to each of the Staff's numbered interrogatories. These deficiencies in the Mass AG's Response are discussed seriatim below.
A. The Mass AG's General Ob.iections.
- 1. General Objection 1 In the first paragraph of his "general objections", the Mass AG objected to "the disclosure of attorney-client comunications" and to I
disclosure of "the work product of the Department of the Attorney General ;
or any other attorney (s)." Mass AG Response at 1. As is discussed below with respect to specific Interrogatories, the Mass AG's assertion of this objection is unsupported and without merit. A party objecting to a discovery request on grounds of privilege has an obligation to specify in its response the same matters which it would be required to set forth in attempting to establish "good cause" for the issuance of a protective order, i.e., he must set forth a specific designation and description of !
(1) the documents claimed to be privileged, (2) the privilege being asserted, and (3) the precise reasons why he believes the privilege applies to the requested information or documents. Long Island l
- - - . - . - - - - - - - - - -- - , . . . - - , - - - , - . - _ , - - - - - . . - . . _ , . - - - . - - . - - , - . , , ~ ~ - - - - - - , -
4-Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982); Duke Power Co. (Catawba fluclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1942 (1982).
Claims of privilege must be specifically asserted with respect to particular documents. Privileges are not absolute and may or may not apply to a particular document, depending upon a variety of circumstances.
Shoreham, supra, 16 NRC at 1153, citing, United States v. El Paso Co., 682 F.2d 530, reh'g denied, 688 F.2d 840 (1982), cert. denied, 104 S. Ct. 1927 (1984); United States v. Davis, 636 F.2d 1028, 1044 n.20 (5th Cir. 1981). I The claimant of a privilege bears the burden of proving that it is entitled to such protection and of pleading the privilege adequately in l 1
its response. Shoreham, supra, 16 NRC at 1153, citing In re Fischel, 557 !
l F.2d 209 (9th Cir.1977); Public Service Co. of New Hampshire (Seabrook i
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Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 495 (1983). The Attorney '
General's unsupported objection to production of privileged material, without any attempt to demonstrate that the information and/or documents it is withholding constitutes privileged material, is insufficient to meet that burden. See Seabrook, supra, 17 NRC at 495. In addition, it is not sufficient for a party asserting the privilege to await a motion to compel from the party seeking discovery prior to setting forth a specification of l l
the information and/or documents which are claimed to be privileged.
Shoreham, supra, 16 NRC at 1153. Such an approach, if pennitted, might necessitate the filing of a further motion to compel and would inevitably delay the proceeding.
To claim the attorney-client privilege, it must be shown that:
(1) the asserted holder of the privilege is or has sought to become a
. client; (2) the person to whom a comunication was made is a member of the bar or his subordinate, and is acting as an attorney in connection with that comunication; (3) the communication relates to a fact of which the attorney was informed (a) by his client, (b) without the presence of strangers, (c) for the purpose of securing p-%arily either (i) an opinion of law or (ii) legal services or (iii) legal assistance in some legal proceeding, and (d) not for the purpose of comitting a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-70, 18 NRC 1094, 1098 (1983), citing United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).
In sumary, bare allegations of the work-product doctrine or the attorney-client privilege -- such as those made here by the Attorney General -- are insufficient to insulate a party from the duty to provide a complete and proper response tc the discovery request.
- 2. General Objection 2 The Attorney General ob,iects to the Staff's definition of the party from whom this discovery is sought (Definition 5), on the grounds that this definition is "overly broad" and "would, inter alia, include the 1:;c e : towns in the EPZ which are already parties to this litigation."
Response at i. Thie objection is without merit.
The definition at issue here reads as follows:
- 5. "Intervenor" or "Intervenors" means the Comonwealth of Massachusetts, the Executive Office of Public Safety, and Essex County, o.a any of them, or any agency thereof and any agent, employee, consultant, contractor, technical advisor, representative or other person acting for or on behalf of them, or at their direction and control, or in concert with or assisting them.
This definition constitutes an accepted specification of a party and its subordinates, and is plainly unobjectionable. There is nothing in this definition that provides any rational basis for the Attorney General's claim that it is so broad as to include towns located in the Massachusetts portion of the EPZ. In any event, the Attorney General is surely aware that the Staff has already sought discovery directly from those entities; and the Staff does not request that the Attorney General respond to the instant discovery on behalf of the towns.
Apart from claiming that the request is so broad as to encompass the towns, the Attorney General has not provided any other specification in support of this objection. It is well established that 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 it too broad and, if feasible, to interpret the request in a reasonable fashion and supply documents or information within reason. Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-41, ?2 NRC 765, 768 (1985). The subject definition satisfactorily infonns the Mass AG of the sources from which pertinent infonnation is sought, and the Attonrey General's objection thereto should be rejected.
- 3. General Objection 3 The Attorney General next objects to the Staff's request that any pertinent infonnation available in response to its discovery be provided by "officers, employees, directors, advisors, representatives or counsel."
According to the Attorney General, this "would entail putting the Staff's Interrogatories and Document Requests to each employee of the Commonwealth." The Attorney General further contends that, "as such, it
. is overly broad, unduly burdensome and seeks information not reasonably calculated to lead to the discovery of admissible evidence." Response at 2.
This objection is baseless. The Attorney General, like any other attorney representing a party in litigation, is responsible for deter-mining and identifying the proper individuals employed by or associated with his client (s) who may possess relevant information or documents called for in discovery. The Staff has sought no more here. The Attorney General is obliged to make a reasonable determination as to which officials, employees or agents of the Comonwealth are likely be in possession of the information and/or documents sought in the Staff's discovery requests, and to make a good faith production of the same. In this regard, it should be noted that a request for documents should not be deemed objectionable solely because there might be some burden attendant to their production. Shoreham, supra, 16 NRC at 1155.
Finally, there is no merit in the Attorney General's claim that this definition is not "reasonably .21culated to lead to the discovery of admissible evidence." The test as to whether particular matters are discoverable is one of "general relevancy." This test will be easily satisfied unless it is clear that the evidence sought can have no possible '
bearing on the issues. Comonwealth Edison Co. (Zion Station, Units 1 &
2), ALAB-185, 7 AEC 240, 243 h 474). The Attorney General has failed to support his claim of irrelevancy, and this objection should be rejected.
- 4. General Objection 4 The Attorney General next objects to producing documents at the Staff's offices, and instead indicates that it will make its documents
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"available for inspection at the office of the Mass AG and/or at the locations at which the documents are nomally kept and in the manner in ,
which they are retained in the usual course of business." The Attorney General has failed to identify any documents in response to the Staff's l l
discovery request, and has provided no reason to believe that any i documents to be produced are so voluminous as to preclude their production at the Staff's offices. By contrast, it is unreasonable to require the Staff to travel to each of the various offices of the Commonwealth where relevant documents may be located, in order to inspect the same. The Staff notes, however, that it is willing to inspect and receive the documents at a central document depository, should the Attorney General, interested municipalities and Intervenors agree to establish the same.
B. Objections to Instructions.
The Attorney General objects to Instruction A of the Staff's Interrogatories, which had requested "estimated infomation" where "exact j
infomation is not available." While the basis for this objection is not set out clearly, the Attorney General cites Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980), apparently claiming that this request would impemissibly require him to perfom independent research rather than providing infomation which is already in his possession and control. A reading of the instruction at issue indicates that there is no basis for the Attorney General's apparent concern; the provision of "estimated infomation" where exact information is not available generally would require only the provision of approximated infomation (e.g., an approximation of how many police officers are employed) where exact
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figures are unavailable. Such estimated information is well within the I i
scope of information within a party's possession or control, which a party is obliged to provide in response to a relevant discovery request; and no "extensive independent research" is necessitated by this request. In any
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event, "[I]f the interrogatories are relevant, the fact that they involve work, research and expense is not sufficient to render them objectionable I
[where] much of the information is in the possession or knowledge of the
[ parties to whom they are directed] and must be compiled in their own preparation for trial." Susquehanna, supra,12 NRC at 334 n.26, citing i United States v. NYSCO Laboratories, Inc. 26 FR0159,161-62 (E.D.N.Y.
1960).
The Attorney General next objects to Paragraphs B and G of the ;
Staff's Instructions, claiming that these paragraphs impermissibly seek to
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expand upon a party's discovery obligations concerning assertions of privilege and the duty to supplement. No discussion has been provided in support of these claims; and no basis for them is readily discernible.
C. Objections to Definitions.
The Attorney General next raises a series of objections with respect to certain definitions contained in the Staff's Interrogatories. These objections, like those discussed above, are unsupported by any discussion sufficient to illustrate any basis in their support, and are without merit. While the Staff takes issue with all of these abjections, the Attorney Generals's objection to Paragraph 9 is partict.'arly troubling.
There is no simply basis for the Attorney General's refr al to provide information which it claims is "public infonnation" -- e ,pecially in light of its failure to describe the type of infonnation that is alluded to I
. within this objection as being "public", and its failure to indicate where that information may be obtained. Also, the Attorney General's assertion of "undue burden" with regard to the identification of contacts or communications (Definition 11), is unsupported. Absent any substantiation for this claim of "undue burden", the claim should be rejected.
D. Answers and Obiections to Particular Requests, interrogatory 1 NRC Staff Interrogatory 1, and Mass AG's response, read as follows:
- 1. Identify and supply each document containing procedures, plans, orders, instructions, directions, and training materials of the Comonwealth of Massachusetts, and Intervenors as defined in definition 5 for any action in the event of:
(a) a radiologicil emergency or disaster steming from a nuclear plant accident, whether the plant is located inside or outside of Massachusetts; (b) other radiological emergencies or disasters; and (c) all other "emergencies" or disasters as defined in paragraph 4 of the above definitions.
Answer and Response to 1:
OBJECTION: The Mass AG objects to this interrogatory on the grounds that it is overly broad, unduly burdensome and seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. This request calls for emergency planning materials from any and all entities related to the Commonwealth concerning any and aTT types of emergencies irrespective of location. The matters at issue concern the Seabrook EPZ. Moreover, this request seeks some information directly related to and pre-sumably in the possession of other Intervenors. As such, the staff should direct such inquiries elsewhere.
The Attorney General's objection to this fundamental interrogatory is altogether unjustified. The existence of emergency plans for other emergencies in the Commonwealth of Massachusetts, such as emergencies involving other nuclear plants, the transport of nuclear materials, or i-1
hurricanes, is directly relevant to the Comonwealth's ability to respond to an emergency at Seabrook, and may be indicative of the likely manner in which the Commonwealth would respond to such an emergency if the plant is licensed. The Attorney General's assertions of overbreadth, undue burden ,
and irrelevance are unsupported; and its objection and failure to respond lack any substantial justification, and should be rejected.
Interrogatory 2 NRC Staff Interrogatory 2, and Mass AG's response, read as follows:
- 2. With 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; (c) Professional or volunteer fire-fighting personnel; (d) First aid and resc'ie personnel' (e) Emergency Service personnel; (f) local support services personnel; (g) Medical support personnel; (h) Health and Environmental Department personnel; (1) National Guard, Militia or Reserve personnel; (j) Boards of Education, School Boards or Departments, and teachers; (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 i i 1
, . _ , . _ _ . , , . . . _ _ . __._,_,,,__.m., _____ __ _ - - - - , . -,
(m) Individuals available to provide assistance pursuant to agreements to aid between municipalities or other government units, or pursuant to other agreements.
Answer and Re_sponse to 2:
OBJECTION: See Response to Interrogate: 1. In addition, the Mass AG objects to Interrogato 2 on the grounds that it is duplicative and confusing. In the event that documents are produced in responte to (a more limited)
Interrogatory 1, those documents will speak for themselves as to the infomation requested in number 2. ;
The Attorney General's response to Interrogatory 2 fails to indicate why it believes this interrogatory is "duplicative and confusing", and no such problems are readily apparent from a reading thereof. In addition, the Attorney General's reference to its response to Interrogatory 1 should be rejected, for the reasons set forth in the discussion of Interrogatory 1, supra. Finally, inasmuch as the Attorney General has failed to produce any documents responsive to this request, his assertion that the documents "speak for themselves" is meaningless and cannot be accepted.
Interrogatory 3 I NRC Staff Interrogatory 3 and Mass AG's response, read as follows:
- 3. Set out the training each category of personnel set out in Interrogatory 2 has to perform its function in an I "emergency."
Answers and Responses to 3(a) through 3(k):
(a) This Interrogatory is overly broad and unduly burdensome. To the extent that the Staff seeks infomation in the possession of other Intervenors, the Staff should address those inquiries elsewhere. Similarly, to the extent that the Staff seeks infomation pertaining to "private" security personnel, the Staff should address its inquiries elsewhere. The term "public" security personnel is objec-tionable in that it is vague, confusing and undefined.
The Mass AG is in the process of assembling infomation regarding the training program (s) for State Police.
. (b) The Mass AG is in the process of accumulating infomation regarding the training program (s) for Civil Defense personnel.
(c) This Inter'ogatory is objected to. To the extent that the Staff seeks information pertaining to other Inter-venors, the Staff should address those inquiries elsewhere.
(d) See Response 3(c).
(e) See Response 3(c). l (f) See Response 3(c).
(g) See Response 3(c). In addition, insofar as this request concerns employees of private institutions, the Staff should direct such inquiries to the respective institutions.
l (h) The Mass AG is in the process of assembling information regarding the training program (s) for health and environmental personnel.
(i) The Mass AG objects to this Interrogatory to the extent that it seeks information about Reserve units not under the authority of the Commonwealth. The Mass AG is assembling infortnation regarding the training program (s) for the National Guard.
(j) See Response 3(c).
(k) See Response 3/ci. In addition, the Mass AG objects to this request because requesting training programs ;
for all "state, local and municipal departments or agencies" l 1s ov Fly broad, unduly burdensome and is not reasonably calculated to lead to the discovery of admissible evidence.
(1) See Response 3']).
(m) See Response 3(g).
While the Attorney General claims that portions of this interrogatory are overly broad and burdensome, he has failed to specify any reason which could support such an assertion. The Attorney General's assertion that the reference to "public security personnel" is "vague, confusing and ill-defired" is hardly befitting of a sovereign State entrusted by its citizens to protect them. Too, the Mass AG's assertion that it should not
. be required to provide information concerning "private" security personnel or "Reserve units not under the authority of the Commonwealth" should be rejected, in the absence of any averment that the requested information is not within the possession of the Commonwealth and that the Commonwealth, itself, does not rely upon or take notice of the abilities and training of such personnel in its own emergency planning and contingency plans for dealing with other emergencies -- regardless of the identity of the groups with which these emergency personnel are affiliated. The Attorney General has failed to support his claim of burdensomeness in producing this information -- assuming the information is indeed within the Commonwealth's possession. F. ially, the Attorney General's assertion that he is "in the process of assembling" some of the information requested fails to indicate any particular time frame within which the information may reasonably be expected to be produced; and this unsatis-factory assurance should be rejected.
Interrogatory 5 Interrogatory S and Mass AG's response read as follows:
- 5. Identify the number of individuals in each of the personnel categories listed in Interrogatory 2(a)-(m), and the number of such personnel: (a) within the 10-mile EPZ plume exposure pathway; (b) from 10 to 25 miles of Seabrook Station; (c) from 25 to 50 miles of Seabrook Station; (d) from 50 to 100 miles of Seabrook Station; and (e) within the Commonwealth of Massachusetts outside the aforementioned areas.
4 Answer and Pesponse to 5:
OBJECTION: See response 3 (a-m) which is incorporated herein by reference. The Mass AG is collecting information regarding certain categories, as set forth in Response 3.
However, the Mass AG objects to conducting analyses and
, engaging in computations regarding that data. See, e.g.,
Pennsylvania Power A Light Co. (Susquehanna Steam Elec.
Station, Units 1 and 2). Al.AB-613, 12 NRC 317, 334 (1980) 1
(party responding to discovery not required to perform independent research and only has to reveal information in its possession or controli. See also Houston Lighting &
Power Co. (South Texas Project, Units 1 and 2), LBP-80-ll, 11 NRC 477, 478 (1980). Further, the Mass AG objects to 5(e) on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.
The Attorney General has failed to support his claim that the information sought here is "overly broad" and "unduly burdensome".
Furtner, the Attorney General incorrectly characterizes this interrogatory as seeking to require him to conduct analyses; no analyses need be conducted to respond to this request, apart from the simple tabulation of resource numbers or the production of documents containing such numbers.
There is no merit in the claim that production of this information is 1
irrelevant; to the contrary, the resources available to the Commonwealth, regardless of the location of such resources, is relevant to the i Commonwealth's capability to respond and likely response to an emergency at Seabrook -- and such issues were even litigated in the NHRERP litigation, concerning New Hampshire's ability to respond to an emergency at Seabrook. Finally, the Mass AG's reference to his objection to Interrogatory 3 should be rejected for the reasons set forth above concerning that interrogatory.
Interrogatory 6 a
Interrogatory 6 and Mass AG's response read as follows:
- 6. Identify the types and number of the following resources available for use in the event of emergencies pursuant to the documents identified in Interrogatory 1: (a) police vehicles; fire trucks; (c) buses; (d) vans; (e) other vehicles; helicopters and other aircraft; (g) boats; h) sirens and public notification system; (i) radior; and (j all other equipment.
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_ _ _ . _ _ _ , _m. _ __. ___ _. _ - _ _ . , . -
, Answer and Response to 6:
OBJECTION: See Response to Interrogatory 1.
The Attorney General's reference to its response to Interrogatory 1 l should be rejected, for the reasons stated above concerning that response. :
The infomation sought in this interrogatory is relevant to the Commonwealth's emergency response capability and its likely response to an emergency at Seabrook, and a proper response should be compelled. )
Interrogatory _7_
Interrogatory 7 and Mass AG's response read as follows:
- 7. Identify the resources enumerated pursuant to Interrogatory C(a)-(j), according to their location: (a) within the 10-mile EPZ plume exposure pathway; (b) from 10 to 25 miles of Seabrook Station; (c) from 25 to 50 miles of Seabrook Station; (d) from 50 to 100 miles of Seabrook Station; and (e) within the ,
Commonwealth of Messachusetts outside the aforementioned areas, l Answer and Response to 7:
OBJECTION: See Response to Interrogatory 6. In addition, in the event that documents are produced in response to (a more limited) Interrogatory 1, the Mass AG objects to this request on the grounds that it is not obliged to conduct analyses or ;
computations pertaining to infomation which it may have in its control or possession. See cases cited in Response to Inter-regatory 5, supra.
This response should be rhiected for reasons presented above concerning Interrogatories 1, 5 and 6. Further, the Staff does not request that independent calculations be perfomed by the Mass AG, beyond the simple tabulation of information within its possession or the production of documents containing that information. A proper response to this interrogatory should be compelled.
Interrogatory 8 Interrogatory 8 and the Mass AG's response read as follows:
- 8. Identify the number and location of Massachusetts National Guard Units, the number of members of each unit, their distance
. from the Seabrook plume exposure EPZ, and the number and locationGuard National of the following resources in emergencies: available (a) cars; for(cuse (b) trucks; by)the vans; (d) helicopters; (e) other means of transportation; and (f) communication facilities, including radios and other means of public notification. Supply the same information for any Militia or Reserve Unit in Masstchusetts.
Answer and Response to 8:
OBJECTION: The Mass AG objects to the scope of this interrogatory on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Further, information disclosing the complete personnel profile of the National Guard would be classified. "Reserve Units" are not under the authority of the Comonwealth.
The Attorney General has failed to indicate any reason to support his claim that this interrogatory is "overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence."
To the contrary, this information is directly relevant to an important aspect of the Connonwealth's ability to re3 pond to an emergency at Seabrook; and the information requested is surely readily available to those officials of the Commonwealth who rely upon or take notice of the National Guard, militia, or reserve units in their emergency planning or contingency plans. The Mass AG should be required to supply the data requested by this Interrogatory.
Interrogatory 9 Interrogatory 9 and Mass AG's response read as follows:
- 9. Identify any plans made for radiological monitoring in the event of a radiological emergency from any cause, including (a) the number and location of personnel trained and available to accomplish such monitoring, and (b) a description and enumeration of radiological monitoring equipment available fcr use in such an emergency, along with identification of the equipment's location.
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Answer and Response to 9:
OBJECTION: The Staff seeks information pertaining to a radiological emergency from "any cause" anywhere in the Commonwealth. As such, this Interrogatory is objected to on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Further, to the extent the Staff seeks information concerning private individuals and institutions it should make inquiry elsewhere.
The Attorney General has fai?ed to indicate any reason to support his claim that this interrogatory is "overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence."
To the contrary, this information is directly relevant to the the Commonwealth's ability to respond to an emergency at Seabrook; and the information requested is surely readily available to those officials of the Commonwealth who are responsible for emergency planning to protect their citizens. The Mass AG should be required to supply the data requested by this Interrogatory.
Interrogatory 10 Interrogatory 10 and the Mass AG's response read as follows:
- 10. Identify any provisions made for handling of individuals contaminated in a radiological emergency stemming from any cause including (a) the number and location of personnel trained and available to assist in decentamination of contaminated individuals, and (b) a description and enumeracion of equipment available for use in decontamination, tiong with identification of the equipment's location.
Answer and Response to 10:
OBJECTION: See Response and Objection to Interrogatory 9 which is incorporated by reference.
This objection should be rejected for the reasons set forth above concerning the Mass AG's response to Interrogatory 9.
. Interrogatory 11 Interrogatory 11 and the Mass AG's response read as follows:
- 11. Identify any provisions made by the Massachusetts Depart-ment of Agriculture, or other state or local governmental agency, concerning protective measures to be used for the 50-mile ingestion pathway from any nuclear plant, including the o methods for protecting the public from consumption of contaminated foodstuffs; and identify any procedures for detecting contamination, for imposing protective measures such as interdiction of food supply, impoundment, or quarantine, and for public notification concerning food contamination and the protective measures to be followed.
, Answer and Response to 11:
OBJECTION: Insofar as this request seeks infortnation pertaining to local governments and/or other Intervenors, the Staff should address such inquiries elsewhere. In addition, the Mass AG objects to this request as being overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence insofar as it concerns any nuclear reactor other than Seabrook Station.
The Attorney General has failed to indicate any reason to support his claim that this interrogatory is "overly broad, unduly burdensome and not reasonably calculated to lead to the oiscovery of admissible evidence." Information concerning the Comonwealth's plans and capabilty to respond to an emergency at other nuclear plants is directly relevant to the Comonwealth's ability to respond to an emergency at Seabrook. See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) 27 (Sept.23,1988), slip op, at 93 (a State's emergency plans, including those relating to other nuclear plants, are relevant in litigation under the realism rule). In addition, the requested infomation is surely readily available to those officials of the Comonwealth who are responsible for emergency planning to protect their citizens in the event of an emergency at another nuclear plant.
Accordingly, a proper response by the Mass AGG should be compelled.
\ . _____ _ _ _ _ _ _ _ _ _
. Interrogatory 12 Interrogatory 12 and the Mass AG's response read as follows:
- 12. Identify the number of Massachusetts Civil Defense personnel according to location within the Commonwealth, and identify the amount and location of equipment available for their use to protect the public in the event of an emergency.
Set out the training of Civil Defense Personnel. -
Answer and Response to 12:
See Responses to Interrogatories 3(b), 4 and 5.
The Attorney General has failed to provide any reason sufficient to
- justify is refusal to respc.id to this request. Although the exact bases for this response are unclear, to the extent the Mass AG contends that this Interrogatory requires conducting analyses and computations, no such request is encompassed in the interrogatory apart from the simple tabulation of infonnnion or the production of documents containing such information as are within the Comonwealth's possession. The Attorney General's objection should oe rejected for the reasons set forth above concerning his objections to Interrogatories 3, 4 and 5. l Interrogatory 14 Interrogatory 14 and the Wass AG's response read as follows: ;
- 14. Identify all documents, agreements, and comunications !
dated within the last five years concerning the operation !
) of the EBS. Produce a copy of all such documents, agree- !
ments and comunications.
Answer and Response to 14:
OBJECTION: The Mass AG objects to this request on the grounds that it is overly broad, unduly burdensome and seeks information '
neither relevant nor reasonably calculated to lead to the j discovery of admissible evidence. There is no rationale for a ,
five-year archaeology of such documents. '
The Attorney General has failed to indicate any reason to support his claim that this interrogatory is "overly broad, unduly burdensome and not i
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. reasonably calculated to lead to the discovery of admissible evidence."
To the contrary, this information is directly relevant to the the adequacy of the emergency broadcast system, which may well constitute an important ;
feature of the Commonwealth's or Applicants' response to an emergency at Seabrook. Further, the information requested is surely readily available to those officials of the Corinonwealth who are responsible for emergencj planning to protect their citizens. Nonetheless, in the interest of limiting this request, the Staff is willina to confine its request for responsive documents to the period of January 1,1986 to the present.
Interrogatory 15 Interrogatory 15 and the Mass AG'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 i 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 and Response to 15 OBJECTION: This Interrogatory is objected to on the grounds that: (1) it calls for legal conclusions and legal research which are the work product of the Attorney General; (2) it seeks infonnation that is public and available to the Staff; and (3) it seeks to elicit portions of the legal position of the l Attorney General on an issue to be decided as a result of this proceeding.
The Attorney General inrnrrectly asserts that this request calls for legal conclusions and legal research. To the contrary, the Staff seeks identification of any reasons relied upon by the Mass AG in contesting the adequacy of the SPMC. The Attorney General's objection that this request "seeks to elicit portions of the legal position of the Attorney General on an issue to be decided as a result of this proceeding" is incomprehensible.
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1 in that such matters, in any event, are likely to be provided by the Commonwealth in any pleadings filed whh the Licensing Board. Moreover, to the extent that the objection is based on an attorney work-product claim, the Mass AG has failed to support that claim as is required to satisfy its burden of proving that it is entitled to protection from discovery. See Public Service Co. of New Hampshire (Seabrook Station, ,
Units 1 and 2), LbP-83-17, 17 NRC 490, 495 (1983). In addition, opinion work product may be discoverable if it was assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 11ad,1162 (1982); Seabrook, supra, at 495.
I Interrogatory *6, _
Interrogatory 16 and Mass AG's response read:
- 16. List all Federal funds received by Intervenors during the past 5 years for purposes of developing plans, procedures, manuals, and other documents concerning responses to emer-gencies, and identify, with respect to each such document, under l what statutes these funds were provided and the Federal agencies or departments from which the funds were received.
Answer and Response to 16 l
OBJECT!0N: See Response and Objection to Interrogatory 14 which is incorporated herein by reference.
This objection should be rejected for the reasons set forth above
! concerning the Mass AG's response to Interrogatory 14. Further, the infonmation sought by this interrogatory directly relates to the
- Comonwealth's capacity to respond to an emergency, and could lead to the
- discovery of relevant emergency planning efforts which may have been made by the Comonwealth to date.
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Interrogatory 17 i
Interrogatory 17 and the Mass AG's response read as follows: ,
- 17. With respect to each document identified in Interroga- $
tory 1, identify any Federal or state law or regulation pursuant ,
to which each such document was prepared. '
f Answer and Response to 17:
t OBJECTION: See Response to Interrogatory 1.
. The Attorney General's objection should be rejected for the reasons '
set forth above conce~ning his response to Interrogatory 1.
Interrogatories 13and,{9 f
Interrogatories 18 and 19, and the Mass AG's responses thereto, are '
cs follows:
- 18. Identify all Massachusetts statutes and regulations, and all local regulations, ordinsiices o.' other provisions, (a) concerning actions to be taken by state or local aethoritic or those acting in their behalf, in the event of i emergencie> including the preparation of plans for actions to i be taken in emergencies; (b) concerning any prohibitions on any i such actions or plans; and (c) concerning any prohibitions on ;
any person or organization other t?.an state or local authorities !
with respect to any such actions or plans. ,
Answer and Response to 18:
OBJECTION: See Response and Objec. ion to Interrogatory 15 which is incorporated herein by reference.
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- 19. Set out the conditions, including citations to all applicable provisions of state and local laws and regulations, (a) under which state and local authorities may permit private individuals or organizations to take action on their behalf in t an emergency; and (b) under which state and local authorities are precluded from authorizing private individuals or ,
- organizations from taking action on their behalf in an !
emergency. ;
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- Answer and Response to 19
3 OBJECTION: See Response and Objection to Interrogatory 15 which is incorporated herein by reference.
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, the Attorney General's objection to these interrogatories should be rejected for the reasons set forth above concerning his response to Interrogatory 15.
Interrogatory 20 Interrogatory 20 and the Mass AG's response read as follows:
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- 20. Set out examples illustrating the conditions described in i Interrogatory 19 (a) and (b). l Answer and Response to 20:
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, OBJECTION: See Response to 19. In addition, the Mass AG l objects to t':is interrogatory because it is not the type of ;
inquiry contemplated by the rules governing discovery. See -
10 CFR i 2.740. The Mass AG is under no obligation to generate and provide examples or illustrations to the Staff.
The Attorney Gcneral's objection to this interrogatory should be !
rejected for the reasons set forth above concerning his response to Interrogatory 19. The Attorney General has provided no reason to believe that this interrogatory exceeds the scope of permissible discovery, and this claim sho ld be rejected. i Interrogatories 23 and 24 Interrogatories 23 and 24 and Mass AG's response read as follows-
- 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.
Answer and Response to 23:
The Mass AG is seeking to determine whether any such studics exist. However, the Mass AG objects to the five-year
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period set forth in this Interrogatory on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.
l 24. Identify all studies conducted during the last five years I concerning improving the movement of traffic in the event of emergencies within the Seabrook Station EPZ which include estir.iates of volume of traffic or the time within which traffic can be evacuated. Provide a copy of all such studies.
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, Answer and Response to ?4:
The Mass AG is seeking to determine whether any such '
studies exist. However, the Mass AG objects to the five-year 1 period set forth in this Interrogatory on the grounds that it is l overly broad, unduly burdensome and not reasonably calculated to i lead to the discovery of admissible evidence.
1 While the Attorney General appears to be willing to provide a partial response to these discovery requests, he objects to the five year time frame incorporated therein. The Staff considers that such a period of time is not unreasonabie, particularly in light of the fact that the ;
Commonwealth had been a willing participant in emergency planning for l Seabrook until two years ago, when it was surely was aware of the same i concerns over Seabrook beach areas as it now espouses sa vociferously.
Production of the information sought by this interrogatory is vital to the I fair and efficient litigation of the Comonwealth's present challenge to !
I the 4dequacy of the SPMC. Further, the Attorney General has again failed to support his claim that the request is "overly broad, unduly burdensome, l and not calculated +.o lead to the discovery of admissible evidence." For these reasons, the Mass AG's objection to these requests should be rejected.
Interrogatory 25 Interrogatory 25 and the Mass AG's response read as follows:
- 25. Identify all State and local laws and regulations con.
cerning the following actions to be taken in the event of radiological or other energencies (see definition 4):
(1) guiding traffic; (2) blocking roadways, erecting barriers in roadways, and channeling traffici (3) posting traffic signs on roadways; (4) removing obstructions from public roadways, including towing private vehicles; (5) activating sirens and directing the broadcast of EBS messages; (6) making decisions and recomendations to the i
public concerning protective actions; (7) makirg decisions and recommendations to the public concerning protective actions for the ingestion exposure pathways; (8) making )
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- - - , - . _ - - ---,.----r . - -. .
decisions and recomendations to the public concerning recovery to automobiles and reentry; (9) dispensing along roadsides; and 10)(fuel from tank performing access trucks control at the Emergency Operations Center, the relocation centers, and the EPZ perimeters.
Answer and Response to 25 OBJECTION: See Response and Objection to Interrogatory 15 which is incorporated herein by reference.
l The Attorney General's objection to tds discovery should be rejected for the reasons discussed above :oncerning his response to Interrogatory 15.
Int rogatory 26 Interrogatory 26 and the Mass AG's response read as follows:
- 26. Identify all studies performed during the last five years concerning the availability and possible use of sirens and other means of emergency comunication to the public in the event of emergencies. Provide a copy of all such studies.
Answer and Response to 26 See Response to Interrogatory 24.
The Attoraey General's objection to this discovery should be rejected for the reasons discussed above concerning his response to Interrogator'J No. 24 The existence of any studies concernir.g available means of providing emergency notification to the populace within the Seabrook j EPZ, which means of notification could be utilized in the event of an I
emergency at Seabrook, is highly relevant and should be produced, j Interrogatory 27 Interrogatory 27 and the Mass AG's response read as follows:
- 27. Identify all sirens or other means of emergency comunica-tion in the Seabrook EPZ which can be heard by the gen::al public.
Answer and Response to 27 OBJECTION: This Interrogatory is objected to on the grounds that it is overly broad and unclear. Insofar as the Staff's request concerns those towns and/or cities in New Hampshire the Staff should inquire elsewhere. In addition, the term "heard" in this context is ambiguous and undefined.
There is no basis for the Attorney General's objection to providing infonnation in response to this interrogatory. To the extent that the Cormonwealth possesses information concerning the ability of persons in Massachusetts to hear sirens or broadcasts originating in New Hampshire, such infonnation is clearly relevant to the adequacy of available measures to protect those persons. Nor is there any merit to the Attorney General's claim that it cannot understand the word "heard"; the word has a plain meaning, which should be applied here. In the interest of explaining this request, however, the Attorney General may interpret it as follows: "Identify all sirens or other means of aural communication which could be used to provide emergency notification to members of the general public within the Massachusetts portion of the Seabrook EPZ."
Interrogatory 28 Interrogatory 28 and the Mass AG's response read as follows:
- 28. Idtntify all studies performed by Intervenors during the last five years concerning planning for emergencies. Produce a copy of all such studies.
Answer and Response to 28.
OBJECTION: This Interrogatory is objected to on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. To answer this request, the Mass AG would have to identify all plans for all communities throughout the entire state for a period coveTiiig the last five years.
The Attorney General's ob.iection to this interrogatory should be rejected. Any studies which may have been performed concerning the
. Comonwealth's ability to respond to an emergency may well lead to the discovery of admissible evidence concerning the Coninonwealth's ability to respond, and the nature of its likely response, in the event of an emergency at Seabrook Station. lne Attorney General has failed to provide any demonstration that the request is unduly burdensome, and a response to j this interrogatory should be compelled.
CONCLUSION ;
The Attorney General has demonstrably failed to make any good faith effort to respond to the Staff's Interrogatories. For the reasons set forth above, the Attorney General should be compelled to provide a I complete and proper response to each of the interrogatories identified '
herein.
Respectfully submitted, b
Sherwin E. Turk Senior Supervisory Trial Attorney Stephen A. Bergquist p[
Counsel for NRC Staff Dated at Rockville, Maryland this 12th day of October, 1988
UNITED STATES OF AMERICA NUCLEAR REGULATORY COPNISSION N
BEFORE THE ATOMIC SAFETY AND LICENSING BORDOCT 19 P4 :19 In the Matter of ) , . , ,
DocketNos[oS0-443OL. .o!
, PUBLIC SERVICE COMPANY OF $0'-444 OL-NEW HAMPSHIRE, et al,. Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S MOTION TO COMPEL ANSWERS TO
! INTERROGATORIES AND THE PRODUCTION OF DOCUMENTS BY THE MASSACHUSETTS ATTORNEY i GENERAL, ESSEX COUNTY, AND THE EXECUTIVE OFFICE OF PUBLIC SAFETY" in the j above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, this 12th day of October 1988:
Ivan W. Smith, Chairnan
- Atomic Safety and Licensing l Administrative Judge Peard Panel (1)*
! Atmic Safety and Licensing Board U.S. Nuclear Regulatory Comission i U.S. Nuclear Regulatory Comission Washington, DC 20555 4 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 Comission Washington, DC 20555 Thomas G. Dignan, Jr., Esq.
j Robert K. Gad, III Esq.
3 Dr. Jerry Harbour
- Ropes & Gray j Administrative Judge 225 Franklin Street :
Atomic Safety & Licensing Board Boston, MA 02110 -
I U.S. Nuclear Regulatory Comission t i
Washington, DC 20555 H. J. Flynn, Esq.
Assistant General Counsel l 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
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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 General 79 State Street One Ashburton Place, 19th Floor Newburyport, MA 01950 Boston, MA 02108 Allen Lampert George Dana Bisbee, Esq. Civil Defanse Director Assistant Attorney General Town of Brentwood Office of the Attorney General 20 Franklin 25 Capitol Street Exeter, NH 03833 Concord, NH 03301 William Armstrong Ellyn R. Weiss, Esq. Civil Defense Director Diane Curran, Esq. Town of Exeter Hamon & Weiss 10 Front Street 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 Manchester, NH 03106 J. P. Nadeau Board of Selectmen Paul McEachern, Esq. 10 Central Street Matthew T. Brock, Esq. Rye, NH 03870 Shaines & McEachern 25 Maplewood Avenue Judith H. Mizner, Esq.
P.O. Box 360 l Silverglate, Gertner, Baker. I Portsmouth, NH 03801 Fine, & Good 88 Board Street Charles P. Graham, Esq. Boston, MA 02110 McKay, Murphy & Graham 100 Main Street Robert Carrigg, Chaiman Amesbury, MA 01913 Board of Selectmen Town Office Sandra ravutis, Chairman Atlantic Avenue Board of Selectmen North Hampton, NH 03870 RF0 #1, Box 1154 Kensington, NH 03827
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1 William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, MA 01913 Michael Santosuosso, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen ,
Board of Selectmen South Hampton, NH 03827 i 13 15 Newma*ket Road )
Durham, NH 03824 Ashod N. Amirian, Esq. i Town Counsel for Merrimac I Hon. Gordon J. Humphrey 376 Main Street United States Senate Haverhill, MA 08130 531 Hart Senate Office Building Washington, DC 20510 Robert R. Pierce Esq.*
Atomic Safety and Licensing Richard R. Donovan Board Panel Federal Emergency Management Agency U.S. Nuclear Regulatory Comission :
Federal Regional Center Washington, D.C. 20555 '
130 228th Street, S.W.
Bothell, Washington 98021-9796 1
Sherwin E. Turk l Counsel for NRC Staff ,
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