ML20205N444
| ML20205N444 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/25/1988 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7403 OL-1, NUDOCS 8811040152 | |
| Download: ML20205N444 (16) | |
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L7f03 DCCKETED Octobe[ SM, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
before the ATOMIC SAFETY AND LICENSING BOARD i
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al.
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50-444-OL-1 l
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On-site Emergency t
(Seabrook Station, Units 1 and 2)
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Planning and Safety
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Issues
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APPLICANTS' MOTION TO STRIKE BASIS OF MASS AG'S "AMENDED CONTENTION ON NOTIFICATION j
SYSTEM" IN THE NA'WRE OF A RENEWED MOTION FOR l
SANCTIONS AGAINST MASS AG FOR FAI W RE TO COMPLY WITH 151E BOARD'S DISCOVERY ORDER Applicants hereby renew their motion, pursuant to 10 C.F.R.
I 2.707, that the Board reject and strike Basis A.3 of the Amended Contention on Notification System of the Attorney General for the Commonwealth of Massachusetts ("Mass AG"), as a necessary and proper sanction for the Mass AG's failure to comply with the Board's Memorandum and Order l
l (Ruling on Applicants' Revised Motion to Compel) (August 19, l
i 0811040152 081025 PDR ADOCK 05000443 PDR g
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t 1988) requiring Mass AG to answer certain interrogatories and produce certain documents.1 BACKGItOUND on June 24, 1988, Applicants propounded a set of VANS-related interrogatories to Mass AG which included the following question:
"12.
Please state in detail all the facts underlying the Mass AG's assertion that 'the fourteen VANS locations are physically inaccessible to the VANS equipment', define precisely what is meant by i
factssupporttheassertion."gexplainexactlyhowthose l
' physically inaccessible,' an l
l The quoted language in the interrogatory tracked, word for word, the entire text of Mass AG's Basis A.3.3 1
1 Applicants make this motion to renew based upon new information, not known to them until App 41 cants received the Ar swer of Massachusetts Attorney General In opposition to Applicants' Motion For Summary Disposition of Amended Contention on Notification System (October 11, 1988) on October 12, 1988.
2 Applicants' First Set of Interrogatories and First Request for Production of Documents Regarding the Massachusetts Attorney General's Amended contention on Notification System at 13 (June 24, 1988).
3 The Board admitted Basis A.3 to litigation, over the objections of Applicants and Staff that the basis was too vague to put Applicants on notice as to what specific deficiencies Mass AG was alleging, with the express direction that "the Staff and Applicants may seek further information via discovery procedures."
Memorandum and order (Ruling On Admissibility of Mass. Amended contention and Bases) at 5 (June 2, 1988). -
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i Mass AG replied on July 12 by refusing to answer anything except the request for a definitions "RESPONSE 12:
The Mass AG objects to this interrogatory in that the Applicants have consistently and without basis refused to disclose i
the staging areas and preselected acoustic locations for ths VANS system.
Without waiving i
i this objection, the Mass AG states that ' physically inaccessible' refers to the inability of fully loaded VANS trucks and equipment to drive into and f
j set up at the acoustic locations preselected for them."4
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Actually, Applicants had offered, from June 22 onward,
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to disclose the staging and acoustic locations to Mass AG under an interim protective agreement.5 Once Mass AG had accepted the protective agreement and received the i
locations,6 Applicants asked Mass AG to answer the remainder i
of Interrogatory 12.7 Again Mass AG refused.8 I
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4 Massachusetts Attorney General's Response to First f
I Set of Interrogatories Regarding the Massachusetts Attorney General's Amended contention on Notification System at 8 j
(July 12, 1988).
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Ett Applicants' Motion to Compel Answers to j
l Interrogatories Propounded to the Attorney General For the Commonwealth of Massachusetts at 17 n.3 (July 20, 1988).
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6 Response of the Massachusetts Attorney General to Applicants' Motion For Protective Order at 11 (July 18, 1988).
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7 Applicants' Supplemental Interrogatory (July 16, 1988).
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Massachusetts Attorney General's Additional Responses
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to App 1!. cants' First Set of Interrogatories and Responses to J
Applicants' Second Set of Interrogatories at 2 n.2 (August 1, 1988).
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On August 2, 1988, Applicants moved that the Board compel Mass AG to answer Interrogatory 12.9 The Board granted this motion on August 19, 1988, and gave Moss AG fourteen days in which to respond.10 Following the Board's order compelling an answer, Mass i
AG made a third response to Int'errogatory 12 as follows:
"Response 12:
On August 10, 1988, representatives of the Mass AG's office viewed the acoustic locations and took photographs showing the accessibility, or lack thereof, of each such location.
Based on that information, the Mass AG believes that the following locations are inaccessible VL-02; VL-03; VL-06; VL-07; VL-12; VL-13.
Copies of these photos are attached hereto."ll From the batch of blurred photographs attached, Applicants presumably were supposed to guess what facts, if any, Mass AG intended to litigate.
Applicants, who with just one week left to complete their summary disposition papers on VANS still had no clue as to what f acts Mass AG was alleging under Basis A.3, 'Aoved for sanctions as a result of this latest non-response by Mass 9
Applicants' Revised Motion to compel at 7-8 (August 2, 1988).
10 Memorandum and Ord3r (Ruling On Applicants' Revised Motion To Compel) at 7, 8 (August 19, 1988).
11 Massachusetts Attorney General's Additional Responses to Interrogatories and production of Documents at 3-4 (September 6, 1983).
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AG.12 Applicants asked that Basis A.3 be dismissed, on the grounds that Mass AG's failure to disclose the alleged facts underlying his Basis A.3 rendeted the basis unlitigable.13 In response to Applicants' motion for sanctions, Mass AG finally gave a detailed answer to Interrogatory 12:
"VL-02:
This acoustic location is a parking lot which the Mass AG contends will be substantially full during many crowded beach days and therefore no room will exist for the VKAS vehicles to set up.
VL-03:
This acoustic location is completely unmarked, very difficult to find and the dirt road is neither wide enough to accommodate the VANS vehicle nor level and stable enough for subsequent setup.
VL-06:
This acoustic location is the access road to a well-uced facility.
The VANS truck cannot park on the road but rather must use the side of the road.
The sides are at an incline, which makes setup of the siren inpractical, and are overgrown by trees which makes the full extension of the siren impossible.
VL-07 t The acoustic location is off an exit ramp on I-95.
The VANS truck cannot park on the exit ramp because it would block traffic.
Moreover, it cannot set up off the exit ramp because the ramp is curbed and because the land off the ramp falls 12 Applicants' Motion For Sanction Against the Massachusetts Attorney General For Failure to Comply With the Board's Discovery Order (September 8, 1988).
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off at a sharp incline.
The VANS truck cannot function on that kind of incline.
VL-12:
This acoustic location is off the side of a road where no acceptable shoulder exists and where tree overgrowth prevents the full extension of the siren.
The shoulder where the VANS truck would t
be set up is rutted, uneven, i
overgrown by weeds and too narrow for the truck.
VL-13:
This acoustic location utilize) a paved parking pad when in fact that pad is often fully occupied with automobiles, leaving little, if any, room for a VANS truck."14 Mass AG represented to both Applicants and the Board that this fourth response to Interrogatory 12 fully disclosed all the facts underlying the assertions in Mass AG's Basis A.3.
In reliance on that representation, Applicants moved that the Board allow them to withcaaw their motion for i
sanctions.15 The Board granted Applicants' motion for withdrawal on September 23, 1988.16 On October 11, 1988, Mass AG filed his opposition to Applicants' motion for summary disposition on VANS.
Included 14 Massachusetts Attorney General's Further Responses to Interrogatories 12, 18 and 20(e) at 2 (September 9, 1988).
15 Applicants' Motion to Withdraw "Applicants' Motion For Sanctions Against the Massachusetts Attorney General For Failure to Cosply With the Board's Discovery Order" (September 15, 1988).
16 Order (Granting Applicants Motion to For Sanctions (September 23, 1988).
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J in Mass AG's opposition papers was the following statement of purported facts:
"32d.
Acoustic locations VL-06, VL-07 and VL-12 are unpaved roadsides which will be blocked during substantial parts of the winter by piles of snow cleared from the roads.
VL-03 will be similarly inaccessible during the winter time.
The Applicants have made no provisionforpromptandeffectjveclearingofthese areas during snow conditions."1 DISCUSSION These "facts" concerning snow allegedly blocking four of Applicants' acoustic locations were not disclosed or referred to in any of Mass AG's responses to Interrogatory 12.
Unless Mass AG takes the inconceivable position that he did not know until after September 9, 1988 that it snows in Maraachusetts during the winter, he must admit that his answers to Interrogatory 12 wore incomplete, and that his representations as to the completeness of those answers were untrue.
In thus leading Applicants and the Board down the garden path, Mass AG has not only violated the Board's Order of August 19, but also misled Applicants into believing that snow-plowing of acoustic locations was not an. sue to be litigated.
Applicants have in place contractual arrangemants for the supply of equipment and personnel for the plowing of 17 Mass AG's Statement of Material Facts in Dispute at 3 (October 11, 1988). __.
acoustic locations.
However, this fact was not included in the filing because Applicants had been misled by Mass AG.18 Applicants therefore request that the Board exercise its power under 10 C.F.R. 5 2.707 to sanction parties who violate their obligations to the proceedings.
Egg Statement'of Policy on Conduct of Licensina Proceedino, CLI-81-8, 13 NRC 452, 454 (1981) ("Boards should attempt to tailor sanctions to mitigate the harm caused by the failure of a party'to fulfill its obligations and bring about improved future compliance.").19 Under these circumstances, the appropriate sanction is to dismiss the basis which Hass AG's conduct has deprived Applicants of a fair opportunity to litigate.
The Statement of Policy sets forth several factors that 18 This tactic of hiding his case so that Applicar.cs could not take discovery or make a response in their summary disposition pleadings is similar to Mass AG's conduct regarding Basis A.8, where he withdrew his "oscillation" assertion on July 12 only to attempt to resurrect it on October 11.
Egg Applicants' Response to Late-Filed Sirens Contentions of Mass AG Concerning "Discomfort" and Siren Oscillation (October 19, 1988).
There too, Mass AG's actions undermined rather than advanced the soundness of the factual record in these proceedings.
19 Although the Commission's Statement of Policy primarily focuses on sanctions imposed in response to tactics causing delay in a proceeding, no such limitation is implied in the regulations, and boards have not limited their use of sanctions to those circumstances.
10 C.F.R. 5 2.707; 111 also Kerr-McGee Chemical Coro. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75 (1986); Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP 20A, 17 NRC 586 (1983)..
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a Board should consider in selecting a proper response to a party's failure to abide by one of its orders:
In selecting a sanction, boards should consider the l
relative importance of the unmet obligation, its i
potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or l
i environmental concerns raised by the party, and all l
of the circumstances.
1 Id.
Egg also Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400 (1982)
(applying Commission's factors); Kerr-McGee Chemical Coro.
(West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75 i
(1986) (same).
Each of these factors is considered in turn.
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1.
Imoortance of the Unmet oblication.
Mass AG violated three obligations, each of which is of cardinal importance to these proceedings.
First, he failed to respond properly to Applicants' interrogatory seeking the l
facts underlying his assertions.
Cf. Pennsylvania Power &
l Licht Comoany (Susquehana Steam Electric Station, Units 1 and 2), A LAB-613, 12 NRC 317 (1980).
Second, he violated the Board's order compelling him to respond,
- 21. Kerr-McGee Chemical corocration (West Chicago Rare Earths Facility),
LBP-86-4, 23 NRC 75 (1986).
Third, he concealed that violation by mii. representation.
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l 2.
Harm to Other Parties and the Orderly Conduct of the Proceedina.
l Both the parties and the proceedings have been l
l substantially harmed by Mass AG's concealment of his snow-l l
plowing "facts".
Neither Applicants nor the Staff were able l
l to conduct any discovery to learn the basis, if any, of those l
l "facts", as they would have been able to if Mass AG had made a full and proper response when he was first asked the question.
Worse, neither Applicants nor the Staff were given an opportunity to address the snow-plowing issue in their summary disposition papers, as Applicants certainly would have done if any of Mass AG's responses to the question had mentioned snow L*: those acoustic locations.
By thus i
depriving the other parties of discovery and hamstringing their summary disposition pleadings, Mass AG has thrown the nroceedings into disarray and undermined their fairness.
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3.
Isolated Incident or Pattern of Behavior.
Four times Mass AG was asked (and then finally ordered) l to answer Interrogatory 12.
Twice he refused, the third time 1
his answer amounted to little more than a taunt, and the fourth time he respended with what is now exposed as a half-truth.
Standing alone, this course of conduct amounts to a "pattern of behavior" within the meaning of the Commission's Statement of Policy.
Moreover, Mass AG employed the same tactic of hiding his case, albeit in a somewhat different Itanner, with regards to Basis A.8.
Egg Applicants' Response to Late-Filed Sirens Contentions of Mass AG Concerning "Discomfort" and Siren Oscillation at 4-5, 6 (October 19, 1988).
A clear pattern of evasion and misrepresentation exists.
4.
The Imoortance of the Safety or Environmental Concerns Raised.
As noted above, Applicants have already arranged for equipment and personnel to be available to plow acoustic locations, as they could have demonstrated on the record if Mass AG had not misled them and the Board.
Mass AG's assertions to the contrary could thus have been disposed of l
summarily.20 4
f 20 Nor do the other two arguments made by Mass AG under Basis A.3 merit any concern.
Mass AG's theory that VL-06, VL-07, and VL-12 are too sloped or uneven for operation of the VANS vehicles must yield to the undisputed fact that Applicants have operated the VANS prototype with no problems at each of these locations.
Affidavit of Joseph Ecory, II at 11 11-13 (September 17, 1988).
And Mass AG's a:gument that i
the VANS outrigger would stick out into the road a few feet at VL-12, even if true, does not raice ur.y "important safety or environmental concerns" (if, indeed, it even falls within the scope of Mar,s AG's Amended contention). --
5.
All of the Circumstances.
Mass AG's failure to respond to Interrogatory 12, even when ordered to do so by the Board, forced Applicants to seek an extension of time in which to file their summary disposition motion.
Aga Letter of Jeffrey P. Trout to Judge Sheldon J. Wolfe, Dr. Jerry Harbour, and Judge Emmeth A.
Luebke at 1-2 (September 15, 1988) (memorializing conference call of September 12, 1988).
When it accepted Mass AG's fourth response to Interrogatory 12 and granted Applicants' request for an extension, the Board verbally reprimanded Mass AG for not having been "forthright" in his prior answers.
Mass AG's continuing in his course of concealment mandates the proposed sanction.
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d CONCIUSION For the reasons stated above, the Board should dismiss Basis A.3 of the Amended Contention on Notification System.
Respectfully submitted, y
}Y Th6mai G.
Dignan, Jr.
George H. Lewald Kathryn A.
Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Acolicants i
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':M CERTIFICATE OF SERVICE one of the attorneys for the gg gn 31 P3 A6 I, Jeffrey P. Trout, Applicants herein, hereby certify that on October 25, 1988, I made service of the within document by depositing copias thereof with Federal Express, prepaid, for delivery toh(,or:m.
., a,<
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where indicated, by depositing in the United States mail, PAhM first class postage paid, addressed to) the individuals listed below.
Administrative Judge Sheldon J.
Robert Carrigg, Chairman Wolfe, Esq., Chairman, Atomic Board of Selectmen Safety and Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Emmeth A.
Diane curran, Esquire Luebke Andrea C.
Ferster, Esquire 4515 Willard Avenue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
4 Washington, DC 20009 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory i
U.S. Nuclear Regulatory Commission Commission One White Flint North, 15th F1.
East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 1
i
t Philip Ahrens, Esquire Mr. J.
P.
Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J.
Humphrey R.
Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Clark, Hill-Whilton &
Washington, DC 20510 McQuire (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey One Eagle Square, Suite 507 Concord, NH 03301 (Attn:
Herb Boynton) i Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 i
Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Ga ry W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301,
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l Mr. Richard R.
Donovan Judith H. Mizner, Esquire Federal Emergency Management 79 State Street l
Agency Second Floor i
Federal Regional Center Newburyport, MA 01950 130 228th Street, S.W.
l Bothell, WA 98021-9796 esi 1
JWifrg P. Trout 1
(*= Ordinary U.S.
First Class Mail.)
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