ML20205K434
| ML20205K434 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/19/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#488-7472 OL, NUDOCS 8811010144 | |
| Download: ML20205K434 (33) | |
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- PUBLIC SERVICE COMPAtlY OF ) 50-443-OL i l 11EW HAMPSHIRE, et al., ) 50-444-OL i
) OTF-SITE EMERGE!1CY !
. (SEABROOK STATIO!1, Ut1ITS 1 AllD 2) ) PLA!;illtiG ! I I ) .~ . I STATUS cot 1FERE!1CE i , I d 0 ! P i \ i i h l LOCATIO!I: Cothosda, Maryland i l PAGES: 14706 through 14736 i i j DATE: October 19, 1980 i
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14706 UllITED STATES NUCLEAR REGULATORY COMMISSIOli ATOMIC SAFETY AND LICEtiSIt1G BOARD L S;c50T&I In the Matter of: )
) Docket tios.
PUBLIC SERVICE COMPAliY OF ) 50-443-OL 11EW llAMPSilIRE, et al., ) 50-444-OL
) OFF-SITE EMERGE!1CY (SEABROOK STATIOti, UNITS 1 AND 2) ) PLAtiN!!iG STATUS CO!1FEREtiCE Wednesday, October 19, 198%
Room 458 4350 East West liighway Bethesda, Maryland The above-entitled matter came on for hearing, ; pursuant to notice, at 4:10 p.m. DEFORE: JUDGE IVAll W. SMITil, CitAI RMAtt ; Atomic Safety and Licensing Board l U.S. tiuclear Regulatory Commission I
. Washington, D.C. 20555 . ;
, JUDGE JERRY llARBOUR, MEMBER z Atomic Safo:y and Licensing Board i U.S. Nuclasr Regulatory Commission ; Washington, D.C. 20555 l r JUDGE GUSTAVE A. LItiEt1BERGbH, JR., MEMBER l Atomic Safety and Licensing Board ! U.S. tiuclear Regulatory Commission l Washington, D.C. 20555 r l [ L IIeritage Reporting Corporation O (202) 628-4880 l f
14707 APPEARANCES (s- For the Applicants JEFFREY TROUT, ESQ. Ropes a Gray . 225 Franklin Stroot Boston, MA 02110 For the Snacoast Anti-Pollution League JANE DOtJGliTY Director Seacoast Anti-Pollution League 5 Market Street , Portsmouth, Nil 03801 i i i I l l i T i, I L i ( L l t lieritage Reporting Corporation () (202) 628-4088 i i 1
14708 1 PROCEEDIilGS 2 JUDGE SMITilt We are on the record now. 3 This conferen70 is being held at the request of 4 Ms. Doughty, who apparently received this morning our 5 memorandum and order directing SAPb to respond to discovery 6 request dated October 18, 1988. 7 Ms. Doughty, do you want to procood with your 8 point? 9 MS. DOUGitTY : Yes. I think it might be helpful, 10 first of all, to discuss where we are in terms of the l 11 procedural posture. l l 12 In our September 12th answers to the Applicants' i 13 first sut of interrogatories, we attended a motion for a 14 protective order there which I thought, given past history () 15 of this caso, prohibits the action of a motion to compol 16 until there had been a ruling on the motion for a protectivo 17 order. . . 18 And I thought that the whole purpose of this 1 19 conferenco call was to do away with -- perhaps roach nomo 20 agreement so the Doord wouldn't even have to reach the issue 21 of whether to rule on the motion for a protective order, and 22 th m later, the motion to compel. That is my understanding 23 of what we were doing procedurally. 24 And I thought somohow our arguments were to bo 25 conveyed to the Board, though it appears that was an IIoritago iteporti ng Corporation () (202) 628-4888 f
14709 1 incorrect understanding on my part. 2 JUDGE SMITil: Mr. Trout. , 3 MR. TROUT: My understanding, Your lionor, is that 4 our motion to compol was our responso to SAPL's motion for a ; i 5 protective ordor, and that the Board, in ruling on our 6 motion to compel, of necessity was ruling upon SAPL's motion , 7 for a protectivo order; that the Board granted our motion in 8 part and it granted SAPL's motion in part. That's how I , 9 read the Board's order of the 18th, and that has also boon 10 my understanding of the proceedings -- of the practice in - 11 those proceedings in the past. When a party files a motion i i 12 for a protective order and the other party comes back with a l 13 motion to compel, the Board rules once on the discovery 14 dispute; does not rule nn the two motions seriatim. ! () 15 JUDGE SMITH: Your interpretation of it, Mr. t Trout, is probably the most workablo. flovertholoss, the ), 16 17 provision in the rules is fraught with opportunity for , i l 18 confurlon. Ms. Doughty is not the first party to be , 19 confused about the sequence there. I 20 The rule clearly calls f or a motion for a ; 5 21 protectivo ordor, and a ruling on the protective order. I ! 22 think it would have been a good idea to have clarifiod that , 23 the response to a motion for a protectivo order is olther to 24 agroo with it, or to move to compul. We didn't clarify l 25 that. [ F lloritago Reporting Corporation f () l (202) 620-4080 4
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l 14710 , 1 I, nevertheless, think, Ms. Doughty, that you ware I O2 not very diligont to 800 a motion to compel put forward, and l l 3 then just rest on your concept that a motion for a l i 4 protective ordor was still pending and would resolvo your j t 5 caso. You knew there was a motion. ; (, MS. DOUGHTY: Well, I checked with a couple other I 7 counsel en the caso, and their impression was that the . 8 motion for a protective order would obviate the necessity of ! l 9 replying to a motion to compel until after the protectivo ; I 10 orders had been dealt with. , j i l i 11 And in the past on the order in which those things ! I? have been filed, it seemed to have governed the way the l 13 process went. If the Applicants filed a rotion to compel . { i 14 Lofore we filed a motion for a protective ordor, things ; () 15 happened one way in the past. And then if, when you filed I i 16 your intorrogatory replies with a motics for a protectivo ; J l 17 order, it changed the way the process went in the past. . i ,. 1 18 JUDGE SMITil Well, I have had trouble with this j t 19 language in the past. I understand the confusion. I don't [ i 20 really believe that any prudent counsel would just allow a
; 21 motion to compol to go beyond answer date when matters of I 1 t i 22 such importance are on the table. {
l i 23 But, nevertheless, would you just go ahead and J l 24 make your argument now. We will hear your arguments. . 25 MS. DOUGHTY: I didn't think the clock would start
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l 14711 e 1 running on the motion to compel until after action had taken 2 place on the motion for a protective order. That was my 3 belief. So I didn't think I was being an imprudent counsel 4 in waiting, because I didn't think th. clock -- 5 (Telephonic difficultlos.) 6 JUDGE SMITil Ms. Doughty? 7 MS. DOUGitTY: Yes. 8 JUDGE SMITil Mr. Trout? l Yes. 9 MR. TROUT 10 JUDGE SMITil: I'm looking now at Ms. Doughty's 11 separate motion for a protective order. I 12 MS. DOUGIITY: Could I just finish making that 13 point I was making when we got cut off. 14 JUDGE SMITil All right. O 15 Ms. DOUGliTv Jest meke sere it s en the record 16 and compiuto. I hadn't quito finished my thought when the 17 phone line went dead. - 18 JUDGE SMITil All right, go ahead. 19 MS. DOUGitTY: I was saying that I didn't think the 20 clock would begin ticking on a motion to compel until after 21 the motion for a protective order had been ruled on. 22 Decause it was my understanding that the whole purpose of a 23 motion for a protective order shield against motions to 24 compel, and that that would not become activo until such 25 time as the motion for a protactive order. Heritage Iteporting Corporation (202) 620-4000
14712 1 JUDGE SMITill I think it was clear that that was
) 2 your boliot, because I seo your motion for a protective 3 order. You move that there be.no motions to compel granted.
4 And it seems to me that you woro in good faith of thinking 5 that that was the sequence. 6 MSt DOUGitTY: Right. 7 JUDGE SMITits So I am not questioning that. 8 MS. DOUGIITY: As a consequence, I have not mado 9 the response to the motion to compel which I would otherwise 10 havo mado had I not boon under that impression. 11 JUDGE SMITil: Dut where you are, let's say the 12 matter was before us now on your motion for a protectivo 13 order. 14 MS. DOUGitTY: Okay. () 15 JUDGE SMITill You just simply haven't given any 16 reasons for n protective ordor. All you have made is just a 17 bare statomont that lawyors woro prosent during . 18 conversations, and I hope that you understand now that that 19 is not a sufficient argument for a claim of privilogo. You 20 don't even identify whether it's attornoy/ client or work 21 product or what type of privilege it is. 22 You really all this tino have given us no basis to 23 protect you against discovery. 24 MS. DOUGitTY : Maybe it was a little inartfully 25 explained here, this language. But the point is that I act floritage lloporting Corporation () (202) 628-4880 l t
14713 l 1 1 as counsel for SAPL at times when Mr. Backus is not able to 2 attend mootings. And I was attending -- I was a party to i 1 3 t,.is conversation that I note here, those conversations, l 4 acting in the cLpacity of counsel for SAPL. < 5 And the problem is going to ariso 11 I am not able j 6 to do that. It's going to really impair our ability to l 7 bring forward our caso, because I am oftentimes in a ! t 8 position where I have to servo as counsel for SAPL, as in l i 9 the present instance. : l
, 10 JUDGd SMITil Incidentally, as I understand it, j ! L 11 Mr. Backus was invited to join us this afternoon.
12 MS. DOUGitTY : lle's in a hearing and is unable to. .; 13 JUDGE SMITit And you have elected to go fnrward a l 14 without him? 1 () 15 MS. DOUGliTY : Right. 4 16 JUDGE SMITit Mr. Trout. i 17 .MR. TROUT: Your lionor, I am 3 little bemused by 18 the assortion that it would impair the ability of SAPL to 19 function if their field director were not automatically 20 treated as an attorney and accorded an attorney / client -- I j 21 some nort of privilege in her conversations with non-members 22 of SAPL. l 23 What wo are talking about in this particular l i 24 instance -- 25 MS. DOUntTY: This is a meeting to counsel with lloritage Holmrting Corporation O (202) 628-400H
14714 1 their clients that I am talking about. f ( 2 MR. TROUT: I understand that what we are f 3 discussing is your meeting with town officials, and I assume , i 4 you are not saying that the town officials are your clients. ! 5 MS. DOUGIITY: This meeting was with counsel, with [ l 6 soma of their clients present. That was what the mooting ; i 7 was. l 8, JUDGE SMIT 11: Well, let's tako it one at a time. ! 9 There is two categories as I understand it. f i 10 One category is that you were present during { 11 mootings -- l t 12 MS. DOUGIITY : My recollection, there were two } t 13 mootings. The purpose of the mootings wat for counsol for ; E 14 the various parties to get together with some of the { () 15 representatives fron. the towns to discuss framing 16 contentions on the SPNC. . 17 JUDGE SMITH: All-right, then the understar. ding -- l t 10 MS. DOUGitTY: i haven't even gono to the point ( 19 that I was hoping that this whole matter of claiming 20 privilogo in the interrogatorien just oven has to obviate my i 21 having to go back in my recollection and try to tetuver, if ! 22 I can even find ;t at this lato dato, any natos of that I 23 meeting, of those meetings. I believe there were two. 23 MR. TROUT: Notes of the meetings exist. j 25 MS. DOUGitTY : I think I may have taken notes at f l lloritago Reporting Corporation f ([) (202) 62n-4ana p i l i I
l 14715 1 those mootings, but I don't know where they are, and I don't 2 know -- it's generally my practico, because I don't have a i 3 clear recollection. These are meetings that happonou before j i 4 the SPNC contentions woro filed, and they are going back -- , 5 MR. TROUT: So your interrogatory answer was , 6 inaccurate when it said there were no documents going to -- ! 7 MS. DOUGitTY : Those are my notes. If those are f 0 considered documents -- I 9 JUDGE SMITil So -- 10 MS. DOUG: TTY: It's not my undo.atanding of what I 11 the term "document" is somebody's notes of somebody working ! l i* l 12 as ccansel at a mooting. I don't considor that a document. 13 JUDGE SMITil That was the reason why you answered t l 14 you had no documents? ! () 15 MS. DOUGi!TY : Right. And I am not even sure -- I l 16 don't really recall for sure if I did take notes. Just i 17 generally my practico is to tako notes, and.I may have somo [ 18 if they haven't been destroyed, that is. This has been some f i 19 timo, and the notes woro used, as I said, the whole purposo i 20 was to work on contentions for the SMIC. So that would have 21 boon some timo ago, and 1 may not have retained them, and I I i 22 will have to, it this does not -- this response doesn't l 23 stand here, I'm going to have to go back and run this 24 through two offices to find out if I oven retained any notes ! 25 of those meetings, f k ( lleritago Report.ing Corporation I () (202) 628-48RR f i
14716 1 JUDGE SMITil Ms. Doughty, I think that.I should ! fh 2 tell you, you are over your head on this-issue. .This is not
^
3' as simpic as you seem to think it is. r 4 MS. DOUGilTY : I didn't say -- the simple matter.
$ comes down is, is semeone working.in the position as say 6 either a paralegal, in this case representing the client, I i
7 am'in a sense representing -- just a representative of SAPL 1 8 as well as Mr. Backus. l 9 JUDGE SMITil You are the executive field director 10 for the -- you are an officer in the organization. ; 11 MS. DOUGHTY: I'm an employeeLof the organization. 12 JUDGE SMIT!!: You are an employee of the 13 organization. You are employed for what purpose? ., 14 MS. DOUGIITY: I'm employed to administer the (~5 ss/ 15 organization, and the board of directors also knows that I 16 serve in a semi-legal capacity under Mr. Backus's direction. 17 JUDGE SMITil: All right. You have worked with Mr. . i 18 Backus representing a client.
- 19 MS. DOUGitTY
- Right.
20 JUDGE SMITil: As I see you at the hearing 21 virtually all of the time, you are the functional client for 22 SAPL. I mean you are Mr. Dackus's embodiment of the client, 23 aren't you? 24 MS. DOUGIITY : Board of directors is really the 25 embodiment of the client, lleritage Reporting Corporation O (2o2) 828-4888
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- l' ' JUDGE'SMITil 'And you are appointed by the board ,
2: of-directors? 3 t . MS. DOUGitTY : Yes. i. 4 JUDGE SMITil: 'And one of your duties le to n 5 represent SAPL.in this litigation.-
, '6 MS. DOUGilTY: 7ight, and to work with Mr. Backus.
7 JUDGE. SMITH: And to work with Mr. Backus. P- MS.: DOUGHTY: Right. 9 JUDGE SMITil: Now, I guess you know some of the 1.0 answers to the questions I am going to ask you could very
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11 well prejudice-your position on the privilege. But you did 12 go to meetings.with town officials. 13 MS. OCUGHTY: These are meetings -- the purpose of j 14 the meeting was to have the counsel for the various parties ().15 got together and meet with some of the town officials. 16 JUDGE SMITII: Meet with some of the selectmen of 17 various towns? . 18 MS. DOUGitTY: Well, at a law firm, and the purposo 19 was to have the lawyers essentially get together and meet 20 somo of the clients. I was thoro in the capacity of a 21 lawyer. 22 JUDGE SMITil: Well, you are not a lawyer though. 23 MS. DOUGitTY : 13 0 . !. 24 JUDGE SMITil All right. 25 MS. DOUGitTY: Serving in lieu of Mr. Dackus Heritago Hoporting Corporation O (202) 628-4888 J 4
14718 1 because he v.o not able to attend that meeting. ( r kJ 2 JUDGE SMITil: And what was the purpose of these 3 meetings? 4 MS. DOUGitTY: The purpose was to begin to think 5 about how to frame contentions on the SPliC. 6 JUDGE SMITil To get ready for the litigation. 7 MS. DOUGitTY : Right. 8 JUDGE SMITil: And could you tell me more about the 9 meetings? 10 MS. DOUGitTY : The meeting was held at Mr. l 11 llelwilton's office, at least one of them. I think there i 12 were two meetings. I believe they were both held at his 13 office. I'm not certain. There weren't that many town 14 officials present. I would say there were more lawyers than l ' (~') (/ . 15 town officiais present. I'm not certain of that. I would 16 have to have some kind of a head count. 17 MR. TROUT Your lionor, let me just interject for 18 a minute. I want to remind both the Board and Ms. Doughty 19 what it was that our question asked because it was a very r 20 narrow question, and I don't want to create even the 21 slightest impression that we want to get into the litigation 22 strategy, or the contention-framing strategy of the 23 Intervonors. 24 MS. DOUGilTY: Right, ti;at's -- 25 MR. TROUT: That's not our concern. IIeritage Reporting Corporation O (202) 620-4000
14719 1 What we asked for were conversations which reflect en, kl 2 or contain facts or assertions concerning what the towns 3 would or would not, could or could not, might or might not 4 do in the event of an actual radiological emergency at 5 Seabrook Station. 6 Now it is entirely possible that at some sort of 7 strategy meeting or meetings such facts were discussed, and 8 I think Applicants, particularly in light of the contentions 9 that have been admitted in these proceedings, the 10 Intervenors' contentions, they have a right to those facts. 11 And if the only way we can get at those facts is to find out 12 what was discussed about those facts at those meetings, 13 well, I guess that's what we have to do. 14 JUDGE SMIT &l All right. Let's back up a little
) 15 bit.
16 I think you recognize, Mr. Trout, that Ms. Doughty 17 has made a pretty fair case for the work product privilege 18 with respect to the litigation, framing of contentions. 19 MR. TROUT: She certainly has made a fair case, 20 Your lionor, with regards to the strategy discussions that 21 took place, and Applicants do not even begin to press for 22 those discussions. 23 What we are interested in, all we have been 24 interested in all along are the facts that we need to 25 litigate the contentions that the Intervenors have presented Ileritage Reporting Corporation O. (202) 620-4000
14720 1 us with. (\
'/ 2 And with all due respect to Ms. Doughty and the 3 legal arguments that she has made, those facts cannot be 4 concealed behind a cloak of privilege. To assert that the 5 towns are going to do something or not do something, and 6 then say, well, but we are not going to tell you what they 7 are going to do or not going to do because that information 8 is privileged, is to deny Applicants due process.
9 MS. DOUGitTY : I think that possibly what you are 10 asking for is,n't even within the gambit of what was 11 discussed at this meeting, because the way you are -- what 12 was discussed were certain facts about traffic control 13 points and things of that nature that I don't think you 14 really -- I think you are talking about more of the attitudo () 15 of the town in general. 16 MR. TROUT tio , I am talking about resources, 17 decisions, policies. Attitudes.would be one thing, but I 18 mean you told us that Mr. Lords thinks this is all very 19 funny. That's not what we are looking for. 20 What we are looking for is how many policemen does 21 the Town of Amesbury have and how many does it think it 22 needs in order to staff all these traffic control points, 23 that sort of thing. Those are the contentions that are 24 admitted. 25 And somebody sometime, somewhere has got to give Ileritage Iteporting Corporation O (202) 628-4888
14721 1 us those facts, or we can't litigate the contentions. And 2 if these were discussed at these meetings in Mr. IIelutiton's 3 ' office, and that's the only context in which the facts have 4 come out, then we have to know what they were as they were 5 discussed that day, or those times. 6 JUDGE SMITil: Do you appreciato the distinction 7 that he's making, Ms. Doughty? 8 MS. DOUGitTY: I believe so. I think that -- well, 9 I don't have any specific recollections of particular -- you
- 10 know, number of people and resources. I think the 11 discussion was more general in terms of how the litigation 1
12 is going to go forward. 13 JUDGE SMITH: Ms. Doughty -- I 14 MS. DOUGIITY : I just can't recall. I'm going to ( 15 have to hope that somewhere I kept some r.ates. 16 JUDGE SMITits Ms. Doughty, I think that they have i 17 a good point there. They.are not asking for -- - 4 18 MS. DOUGitTY : This would be true of any -- the 1 19 first point that has got to be eddressed is if this is true j 20 for SAPL, this would be true of any other -- we have got to f 21 establish whether or not in the future I can assume that I i 22 can be present at meetings acting in an attorney and not
- 23 waive our privilege.
24 JUDGE SMITil: Well, it could be that you are at n l 25 meeting, Ma. Doughty, let me explain to you. lieritage Reporting Corporation () (202) 620-4000
14722 1 It could be that you are at a meeting in which
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k/') 2 several things happen. One is you discuss the contentions 3 and how you should frame them and what the law is and what 4 the whole strategy is for the Intervenors. And we might 5 find that that is privilege. We might find it is privilege, 6 but necessary anyway to be revealed, but we would find that 7 it's privileged. 8 HR. TROUT: We're talking work product privilege 9 now here, Your lionor? 10 JUDGE SMITil Yes. I mean you might do that. 11 Tren the meeting may turn to something else. The 12 meeting might turn and say, well, look, as long as we are 13 all together let's go rob a bank, you know. Then that might 14 not be privileged. () 15 or the meeting might say, well, you know, I hope 16 they dcn't find out that we have sitting in our drawer here 17 a fully thought out municipal radiological. response plan. l 18 Then that's a different matter. That would not be a l l 19 litigation strategy. That would be a discussion of the ! 20 actual facts sought by the interrogatory, and that is the l 21 distinction that we are making. 22 Now I don't know how to reco1ve it. I think, an I 23 said, I think it is a difficult thing for you to handle this 24 for SAPL. I think that it is something butter in the hands 25 of Mr. Backus. lieritage Reporting Corporation O (202) 620-4000
14723 1 MS. DOUGilTY : Right. But practically speaking, (,) N' 2 Intervenor groups like SAPL cannot maintain enough attorneys
. 3 to cover all the bases. It's just not going to allow us to 4 protect our rights. We need to be able to rely on what we 5 have been relying on. The board of directors needs to have 6 me act in the capacity as --
7 JUDGE SMITil Well, may I suggest this, see how it 8 works? 9 Let's let Ms. Doughty present to me or to the 10 Board, in confidence, an affidavit, notary public affidavit 11 recounting the events that happened at the meeting. P 12 MS. DOUGitTY: These meetings, to begin with, I 13 remember where it was and generally some of the people who 14 were there. But in terms of the substance, I don't recall, 15 especially since I didn't use my notes, I don't think. I 16 In drafting the contentions on the SP!3C, which I 17 did under Mr. Backus's supervision,.I believe I mainly 18 relied on the document itself and looked for internal lack 19 of consistency in the document rather than drawing on any 20 outside sources of information. 21 So these notes are so dim in my recollection. 22 JUDGE SMITil Well, let's go back to the actual -- 23 MS. DOUGitTY : I'm not just sure what's going to be 24 able to be done at this point in time. 25 JUDGE UMITil Ms. Doughty, I think that you are lioritage Iteporting Corporation O (202) 620-4000
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4 14724
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1 going to have to try a little bit harder. If you have no
'\ / 2 memory, independent memory or if the notes don't show up,
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3 then that's one thing. . 4 MS. DOUGilTY: Independent memory of any facts, 5 because I didn't use anything in draf ting those -- 6 JUDGE SMITil Ms. Doughty, are you representing 7 that you have no memory of any facts? 8 MS. DOUGitTY: Nothing that I think is being 9 reached for in this discovery request. 10 JUDGE SMITil Well, you are not listening to me. 11 I don't know if you appreciate the distinction that I have 12 drawn. Maybe you can explain to me your understanding of 13 the distinction between trial strategy, trial preparation 14 and the request made by the interregator1 () 15 Could you explain that to r<,? 16 MS. DOUGilTY: I would believe that the trial 17 strategy would be how people were going to go about framing 18 their contentions and the time tables and so forth and so 19 on. 20 JUDGE SMITil: And witnesses they may have and that 21 type of thing? 22 MS. DOUG!!TY: Actually what Mr. Trout was 23 discussing. Like how many traffic control guides, or how 24 many policemen there are in a town. And that's what I don't 25 have any specific recollection of. If I wasn't looking at lieritage Reporting Corporation (202) 628-4888
14725
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1 the SPNC or looking at some document, I wouldn't remember k- 2 how many police may or may not be in Amesbury, 3 Massachusetts. I just don't remember. 4 JUDGE SMITil Ms. Doughty, did -- in the first 5 place, what town officials were present? 6 MS. DOUGIITY: I remember there were two from the 7 Town of Newbury, and I think there was only the lawyer for 0 Merrimac. Mr. Amarian was there. !!r . Traficonte was there. 9 Mr. Brock was there. I'm trying to thing. Mr. Lords may 10 have been there. lie may have been the oni other town 11 official. There may have been somebody else. The only town 12 officials I recall were two from Newbury and Mr. Lords. 13 JUDGE SMITil: Did any of those otficials comment 14 on what their actual response would be in the event of a () 15 radiological emergency at Seabrook? 16 MS. DOUGHTY: I don't think so other than they l 17 were talking about that they didn't feel they had the 18 resources in general, but I don't remember anybedy getting 19 into any specifics about what the response would be. 20 JUDGE SMITil Let's take the interrogatory one at 21 a time. 22 MS. DOUGilTY : The whole question -- there were 23 some papers that they produced for Mr. Traficonto too, you 24 know, saying -- but again those were for his work product 25 for preparing contentions. Ileritage Iteporting Corporation () (202) 628-4000 1
14726 1 JUDGE SMITil: You don't have those papers? 2 MS. DOUGilTY: I don't know. Again, I am going to 3 have to really rummage, and I expect they are not even in 4 this office. If I had anything left from that meeting, it's 5 probably where I worked on the SPNC contentions. 6 (Pause.) 7 Dut again, as to what the town would, should, 8 could, you know, it's hard to interpret what the 9 interrogatory is even reaching for. 10 JUDGE SMIT 11: All right. There may be parts of 11 the interrogatory -- can you hear me? 12 MS. DOUGilTY: Yes. 13 JUDGE SMITil There may be parts of the 14 interrogatory that you don't understand. We understand m s 15 about cancel lunch or something like that. But because you 16 don't understand a part of it does not excuse you from 17 answering the parts you do understand. 18 And the reference to the actions that the i 19 government entity would take in an actual radiological 20 emergency or would not take is pretty straight forward, 21 isn't it? l 22 MS. DOUGitTYt That's not the same thing as talking 23 about what resources they have. 24 MR. TROUT That could. 25 MS. DOUGilTY: Whether they intend to take an Ileritage Reporting Corporation O (202) 620-4000
14727 1 action or not is an entirely different thing than what q.
\/ 2 resvucces they do have.
3 MR. TROUT Could or could not. That's why I put 4 in could or could not. That's also JI Contention 63. We 5 are going to later get it. We have to know what the towns 6 can do and what they can't do. They say they can't do a 7 whole mess of things. 8 JUDGE SMITils flow did the Massachusetts Attorney 9 General respond to this interrogatory? 10 MR. TROUT lie told us to go to the towns. 11 MS. DOUGitTY : Well, that's actually what I think 12 is the reasonable answer, too. 13 JUDGE SMITH: Well, that isn't necessary. They 14 can select more than one source of information, and it's () 15 rather prudent that you do that. 16 Ms. Doughty, it's my impression that you are just 17 not responding.to the factual aspects of the interrogatory. 18 You are being very vague. 19 MS. DOUGIITY : What I was hoping initially was so I 20 wouldn't have to get to the point of having to try to 21 rummage around for any notes, because I don't have any clear 22 recollection of those meeting. And as I said, again, I 23 wrote the contentions on the SPlic under Mr. Backus's 24 supervision, using the internal lack of consistency within 25 the document itself or the apparent resource lacks which is lloritago Reporting Corporation (202) 620-4000
14720 1 documented within the SPNC itself. . 2 And the only outside source of information I used 3 at all was some conversations with Mr. Amarian, which I have 4 noted in the answers to the interrogatory there, about what 5 was going on in the transporting staging area in Haverhill, 6 what the legal posture of that was. 7 So I really don't -- this would have been way back 8 before the SPNC, and I just don't have any recollection, o 9 Most of SAPL's contentions go to more broad issues. l 10 JUDGE SMITH: Well, I guess -- excuse me, go 11 ahead, Ms. Doughty. [ 12 MS. DOUGHTY: The details about numbers of people i 13 in each of the towns, and I haven't collected that i 14 information for the intent of using that. () 15 JUDGE SMITH: I guess our ruling would be, Ms. 16 Doughty, is that we are not ordering you, directing you or ; 17 SAPL to reveal trial preparation. conversations as such, work 18 product conversations, trial strategy conversations. But we 19 will modify our order to require you -- to relieve you from 20 that responsibility, but require you to answer the l 21 interrogatory as stated. { t 22 MS. DOUGHTY: I am afraid I am in a position that j 23 some of the counsel who objected to this on the basis of the [ 24 interrogatory was vague and unclear. I need more specific 25 questions, I think. That would be very helpful, because { l r Heritage Reporting Corporation j O (202) 628-4000 , l I
14729 1 what people would or could not do as I think counsel for ( \~)) 2 Amesbury says, they could cancel or no'. cancel a luncheon 3 engagement. 4 JUDGE SMITil: That's frivolous. 5 MR. TROUT: Yes. 6 JUDGE SMITil Ms. Doughty, we are not going to 7 accept with seriousness responses like that. There is 8 another point -- 9 MS. DOUGilTY : A ( "sple -- 10 JUDGE SMITil: Let me complete my thought, Ms. 11 Doughty. 12 MS. DOUGIITY: -- questions I cculd answer them, 13 but we -- 14 JUDGE SMITil Ms. Doughty, can you hear me? Let ( 15 me complete my thought. 16 If Intervenors or any party to the proceeding are 17 unable to understand all or at least parts of the 18 interrogatory, they are unable to understand that, then it 19 may raise a question as to what contribution you can make to 20 the record of this case. 21 I do not regard this interrogatory as being 22 difficult to understand if in fact you possess information. 23 If you don't possess the information, certainly you can 24 speculate as to types of information that would be 25 frivolous, yes. But if you have information -- lloritage lleporting Corporation O (202) 620-4000
14730 1 MS. DOUGilTY : Okay, I do not have any specific 2 information of anybody saying specifically what they would 3 orc would not do if there were a radiological emergency. l 4 JUDGE SMITH: Then I suggest to you that you amend 5 your response to the interrogatory. The way you have it now 6 all you have is privilege. You have not. answered that no 1 i 7' such conversations took place. , l 8 MS. DOUGHTY: Right, and I was hoping I wouldn't i 9 oven have to get to trying to rack my brain and going ; 10 through old notes to figure out if there was anything in the t 11 past conversationa that vaguely went to what they wero ! 12 asking for, because I just hope that that could-all be 13 avoided by saying it is in the context of -- ] 14 MR. TROUT: Your Honor, let me jump in right here. ; O 15 we eervea enie tiret roema e' 1#terro9etorie becx
- 16 in August. You may know we have served another very 17 detailed set of. interrogatories that went out last week.
18 And it is v.;t going to be the position of Applicants that we l i 4 I 19 are gotag to let the Intervonors avoid racking their brains l } ! i 20 as to what they meant in their contentions and as to what l l- ! l 21 facts they have or know concerning the subjects raised in ; i j 22 those contentions. j ! 23 And if the Board feels difforently, I think we had l I j 24 better find that out now because -- ! ! I 25 JUDGE SMITHt No, Mr. Trout, the Interrogatory 2 l ll I i Heritnyo P<.spo r t.i no Corporation {2J2) 628-4880
14731 1 goes to the very heart of ;he amendment te the emergency G (_/ 2 planning rule, and the presumptions that we have to apply. 3 And that is that the governments will exercise their best 4 efforts, and you have a right to find out what those best 5 efforte are. 6 MS. DOUGHTY: Tha problem with this is that if you 7 ask -- and I do not have any explicit statements of any 8 governments about what they consider their best effort and 9 what they could or would nr should not do. l 10 However, if you are getting to the level of have I 11 over heard how many police there are, or do I have a noto : 12 somewhere that talks about how many pclice there are in a ' 13 town, it's possible I do. I don't have any recollection of 14 that. () 15 But in terms of that general thing, I probably 16 should have responded that nobody said anything directly 17 responsive to Mr. Trout's interrogatory. Maybe it. would 18 have boon botter to answer the question that way. rat I was !
- 19 party to some conversations generally about the SPHC. f 20 JUDGE SMIT:1: Well, you understand, Ms. Doughty, f i
21 our ruling that the fact that an attorney was present, which ! I 22 we do not get to here, but the fact that an attorney was , 23 present does not cloak a meeting with privilogo, and that is 24 the nature of your answer. 25 You have not so far answered the interrogatory. , i llor t tago Heporting Corporation l () (202) 628-4800 ;
14732 1 The answet you did giva ans not acceproble by the Board.
) 2 tiow , the way it stands you n..ve not answered tha 3 interrogatory, and it's your move.
4 What do you wish to do about it? 5 MS. DOUGliTY : I wish to try to reframe the anawer. 6 JUDGE SMITil: All right, I think that would 7 probably be a good idea. 8 Mr. Trout, what do you uay? 9 MR. TROUT: Tlat's fine wit h us, Your lionor. 10 MS. DOUGitTY : What I will probably do is chock 11 with Mr. Traficonte and see if, in his opinion as he was 12 also present at that meeting, he has any recollection or 13 anything that would be responsive to Mr. Trout's 14 interrogatory. () 15 And if his recollection is that there was nothing, 16 then I will -- 17 JUDGE SM"TH: 110w you aie required - 18 MR. TROUT: I woul d .mk Ms . Doughty to review her 19 notes and her documents --
! 20 MS. DOUGitTY: If I car. rind them.
21 MR. TROUT: -- wherever they may be if she can 22 find them. I do believe that thar. to a party'n obligation 23 in response to a discover'f request. And whether there is 24 information concerning these meetings or otherwise that goes 25 to the interrogatory, go into the modified answer. lleritoqe Reporting Corporotion (202) 620-4000
y .,. - . - , .. - ... ~ . - . . . . p} is ! 14733 ih
- r 1 , MS. DOUGilTY : I will make an effort to'look for i t 7 ( }' 2 those notes if they still exist. I may have thrown out !
t w 3 everything because I didn't plan to use it. l 4 JUDGE SMITil: Ms. Doughty, although you are 5 certainly free to check with Mr. Traficonte, and if you 6 think-it's going to help your memory any -- l
'~
7 MS. DOUGHTY: Well, it will also help me, I think, 0 understand maybe further the distinction between what is N , 9 attorney -- what properly falls under the rubric of attorney l
, 10 strategizing and what falls in the matter. i 3_
11 JUDGE SMITil I trust that you won't try to , i 12 . interpret our ruling yourself to Mr. Traficonte. It might ; i , 13 draw his attention to this transcript. 1 l 14 MS. DOUGilTY : Okay. 15 J'tDGE SMITil: What time frame are you talking i I 16 about? l 17 MS. DOUGHTY: Well, that's the pleasure of the ! l l 18 Board I imagine. When would you like the answer from me? [ 19 It would be easier if there is going to be a transcript l ! ] 20 obtained, the advice I can gut at the time, f l 21 JUDGE SMITil Ms. Doughty, are you representing to i ! 22 me now -- this is for the purpose of setting time limits. L
- l. !
r 23 Are you representing to me now that you do not recall l t 24 conversations which reflect or refer to the actions that the 25 state or the local governments would take, could take, might h i I
- ' i lieritage Reporting Corporation }
r (202) 628-4808 : ! l t 4 l 6
14734 1 take, would not take, could not take, or might not take in (g_) 2 the event of an actual radiological energency? 3 If that is your representation in this 4 conversation, then we will be a little bit more lenient as 5 to the time. 6 MS. DOUGitTY : I really do not have a very specific 7 recollection about the whole tenure of the conversation that went on at that meeting. It was my recollection that it was 9 to framo contentions on the SPf3C, and the purpose was to 10 courage the counsel for the towns to go out and get some 11 facts to be incorporated in the contentions. 12 JUDGE SMITil: Your voice is failing. 13 MS. DOUGitTY : Sorry. Can you hear me? 14 JUDGE SMITil: Yes. () 15 MS. DOUGitTY : The purpose was to encourage those 16 town officials to go out ano develop the facts that cculd be 17 used to support baser for contentions. That's what my 18 recollection of the meeting's purpose was. It was just to 19 talk about general time frames and so forth under which all 20 that would occur. 21 So I don't believe -- if it did, I junt don't have 22 a real -- this is going back quite a way. And again as 1 - 23 said, I didn't use the material coming out of those 24 meetings, because I worked with the document itself as the 25 source of -- . 1 lieritago Itoporting Corporation () (202) 628-4000
~ . _.. .
L 14735 1 JUDGE SMITH: What document is that? 2 MS. DOUGHTY: 3 JUDGE SMITH: . .ument are you referring to? I 4 MS. DOUGHTY: SPNC.
~
5 JUDGE SMITH: Oh. Anything further? 6 How soon can you respond, Ms. Doughty? i 7 MS. DOUGHTY: Well, I was planning to attend two i 8 meetings this week. There is a deposition of Mr. Graham 9 tomorrow down in Boston. ' t 10 JUDGE SMITH: Will you have a chance to talk to f 11 Mr. Traficonte then? 12 MS. DOUGitTY : Yes, I would. I would have a chance 13 to bring generally this matter to his attention and talk to. !p 14 him then.. ! '( ) 15 Then I am gojng to have -- I had another meeting 16 set up for Friday which would obviate my going over to ! l l 17 . Manchester to hunt for any. notes that may still exist. ; 7 18 There is one desk over there that I'm just going to need to 19 go through and see if I find anything. r [ 20 JUDGE SMITH: All right. Could you have then your j 21 modified or your new answer to the interrogatory in by next i 22 Tuesday? ! 23 MS. DOUGilT1 : Yes, if I can FAX it, I could do it 24 by next Tuesday. l r 25 JUDGE SMITil That would be to Mr. Trout? I E Ileritage Reporting Corporation I () (202) 620-4800 i i I l
.---_a
14736 1 Is that satisfactory, Mr. Trout? (/ 2 MR. TROUT: Yes, it is, Your lionor. 3 JUDGE SMITil All right, is there anything l 4 further? 5 A)1 right, well, I appreciate your joining us, and 6 we will adjourn. 7 MR. TROUT: Thank you, 'four lionor. 8 (whereupon, at 4:51 o' clock p.m., the status 9 conference was concluded.) 10 11 12 13 14 () 15 16 17 - - 18 19 20 21 22 23 24 25 Iruritago Itopo r t.i ng Co rpo rn t. Lon O (202) 628-4088
1 CERTIFICATE _ /"'
%.) 2 3 Thin is to certify that the. attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter 5 of: Public Service Company of New Hampshire, et al.
6 Name: Public Service Company of New Hampshiro, et al. 7 8 Docket Number: 50-443-OL, 50-444-OL 9 Place: Bethesda, Maryland 10 Date: October 19, 1988 11 were held as herein appetra, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typ6 writing by .se or under the () 15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing
. 17 proceedings. .- . ,
18 /s/ '* ER R sa von Kiparski 19 (Signature typed) : 20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 Meritage Reporting Corporation O (202) 628-4888 _-}}