ML20206J604

Memorandum & Order (Ruling on Applicant Motion for Sanctions).* Commonwealth of Ma Atty General May Not Use Info Gathered After 881007 as Evidence or for cross-exam & Will Face Sanctions If Info Disclosed.Served on 881118

ML20206J604
Person / Time
Site:	Seabrook
Issue date:	11/17/1988
From:	Harbour J, Linenberger G, Smith I Atomic Safety and Licensing Board Panel
To:	MASSACHUSETTS, COMMONWEALTH OF, PUBLIC SERVICE CO. OF NEW HAMPSHIRE
References
CON-#488-7514 82-471-02-OL, 82-471-2-OL, LBP-88-28, OL, NUDOCS 8811290050
Download: ML20206J604 (11)

Text

-

' '1 tilt LBP-8'8428'TD UNITED STATES OF AMERICA U""C NUCLEAR REGULATORY COMMISSION T6 NW 17 P3 39 ATOMIC SAFETY AND LICENSING BOARD cra in .-

Before Administrative Judges: O W 'd ' ": ,'* - '

Ivan W. Smith, Chairman '

Gustave A. Linenberger, Jr.

r. Je ny narbuur tr> NOV 1819BB

)

In the Matter c. ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY OF ) (ASLBP No. 8 2-4 71-02-OL)

NEW HAMPSHIRE, at al. ) (Offsite Emergency

) Planning)

(Seabrook Station, }

Units 1 and 2) )

_ _ , ) November 17, 1988 HEMORANDUM AND ORDER (Ruling on Applicants' Motion for Sanctions)

By motion dated October 20, 1988, the Applicants seek sanecions against the Massachusetts Attorney General in the form of dismissing Joint Intervenor (JI) Contentions 45, 5$,

and 58 to the extent that the contentions address the issue of whether bus companies relied upon in the Seabrook Plan for the Massachusetts Communities (SPMC) will respond to a radiological emergancy. JI Contentions 45 and 55 contain an allegation that such reliance ic misplaced in that some bus companies are not willing to participate. JI contention 58 contairs a general allegation that the SPMC fails to provide for an adequate number of manned emergency vehicles.

h!hI obhk $3 o

p#

0

-2 -

On February 17, 1988, in.a Memorandum and Orde.r (Revising Schedule and Approvirig Protective order), the Board issued a temporary protective order intended to provide to the Intervenors early information about the identit" of suppliers of emergency services in the SPMC, wh'ile barring public disclosure of the covered information.

Later, in our Memorandum and order (Protecting Information From Public Disclosure) of March 23, 1988, we extended the protective ord3r until the beginning of the hearing. In that order we orplained that we had observed that a "...

small but aggressive minority of SeabrooM opponents ... have demonstrated by civil disobedience their willingness to frustrate the licensing process by extra-legal means." We noted also that the commission itself had commented that the Seabrook pla' ; is surrounded by an eactienally charged atmosphere and expected that this Board would fashion protective orders that would allow full litigation of contested issues without unnecessarily violating personal privacy. Id. at 2, 7-8, citing CLI-87-13, 2 6 NRC 4 00, 404-05 (1987).

In prohibiting public disclosura of the protected information, the Board's main concern was that

)

undisciplined opponents to Seabrook tould see and use an opportunity ta influence the outcomo of this proceeding by interfering with the arrangements between Applicants and l suppliers of emergency services.

l

t s

The Massachusetts Attorney General opposed the entry of a protective order.

But, after a full discussion of the matter, Assistant Attorney ,eneral John Traficonte committed  !

the office of the Massachusetts Attorney General to s

obedience to a Board order protecting the information. I Tr. 9726. t The issue was briefed further and the orders  ;

] finally issued. L Subsequently "authorized persons" including '

those employed by the Attorney General, either by signing i affidavits of non-disclosure (non-attorneys), or by '

{

1 professional commitments (attorneys), agreed to comply with f the protective order. 1 i

Now Applicants protest the Attorney General's conduct

~

1 on thre"e. separate occasions where protected information was t i

i revealed or could have been revealed to'the public. The first occurred on July 2, 1988 when Assistant Attorney j  !

General Allan R. Fierce attended a FEMA-sponsored public '

t

]

neeting in New Hampshire concerning the June 28-29, 1988 {

1

. general exercise of the New Hampshire Radiological Emergency Response Plan (NHRERP) and the SPMC.

i Mr. Fierce submitted e

i in advance fourteen written questions to the FEMA presiding chairman, Mr. Donovan. Some of the questions were read and l {

j discussed in public; some were not. In the latter group  !

i were questions 9, 12, and 14 which sought the identity by i t

i.

I company name of the buses used, or relied upon and not used,  !

in the exercise. See Attachment "A" to Applicants' notion i

} {

I (partial transcript).

L i' 1

l l' '

! l L

i l 1

_ _ ., n ,_,_,_,,~ _ --.- ,- -,c-.,,c.-.--,. ~h

i L

i Applicants contend that Mr. Fierce by the respective questione deannded public disclosure of protected i information. Applicants claim further that, but for their i

intercession with FEMA, the information might have been I publicly revealed.

The information involved was clearly i intended to be protected by the Board's order. Moreover, as Applicants correctly state, Mr. Fierce did not have to seek the information through the FEMA meeting. As an "authorized r

i person", and counsel in this proceeding, he would have received the information under the terms of the protective i

order. '

I Finally Applicants note the presence at the meeting of [

t persons whose angry and disruptive public debate has been f

extensive, and who are not parties covered by any protective order. The transcript of the public meeting supports (

Applicants'< characterization.

To the Board's puzzlement, Mr. Fierce did not join in  !

tte Attorney General's answer to Applicants' motion. The '

j answer, signed by Assistant Attorney General Stephen A.  :

Jonas, undertakes to interpret Mr. Fierce's intentions.

1 i

j Mr. Jonas argues that Mr. Fierce did not ask for the names t i

of the bus companies during the public portion of the I t

L meeting and that he repeatedly indicated that FEMA need not immediately or publicly provide the protected information.  !

1 Our reading of the transcript indicates that, true, .

Mr. Fierce did not insist upon immediate, thus necessarily I l i  !

i

k public, responses to his questions. The meeting was coming i

j to an end, he was by necessity seeking later, written  !

responses from FEMA. i His questions about the protected i information were siaply not reached before the meeting I closed. Mr. Jonas' claim that Mr. Fierce "repeatedly encouraged FEMA to provide him with the information in a i

non-public fashion, after the meeting" (Answer at 4) is not l support in the trr.uscript. Mr. Pierce never urged a I

i nnn-oublic disclosure -- his remarks wete directed to the (

timino of the disclosure. In fact Mr. Fierce sought even  !

more public time than scheduled to cover his questions.

Tr. 160-61.

I Mr. Jonas maintains that Mr. Fierce's "intent was to '

gather information about the details of the exercire, not to trick FEMA into revealing protected information." Answer at 4.

But he doesn't explain why Mr. Fierce did not avail i himself of ready access to the protected information in his ,

capacity as legal counsel to a party and as an "authorized -

person" under the protective order.  !

It turned out that the protected information was not  !

i publicly revealed, perhaps because counsel for Applicants i wrote to FEMA's General Counsel about the matter and

{

provided a copy of the Board's protective order of March 23, 1988. f FEMA, we note, is not covered by the protective 1 t

order, and it is not clear that Mr. Donovan, FEMA's meeting i l

chairman, even knew about the protective order. I

{

l

~

i l

i We cannot conclude with any degree of assurt:nce whether j Mr. Fierce intended to force the public disclosure et protected information. If his intent was benign, he used poor judgment. He demonstrated a careless disregard for the [

5  !

purposes of tne protective order. Even now, after full i

.; t reflection on the issue, the Massachusetts Attorney General l f

{ condones Mr. Fierce's efforts by arguing that he is not

[

orchibited from obtaining information about bus companies f

from other sources and thereby disclosing that information.  !

Answer, n.2, n.3. The argument is literally correct as far as the protective order goes -- providing that the Attorney General does not use information given to him under the  !

terms of the protective order as an instrument to cause  !

public disclosure of the information.

Howaver, the Attorney General runs a risky course if he j

intends to force public disclosure of protected information.  !

We will view any resulting intimidation of potential I

witnesses as a serious matter, and will hold the Attorney {

General accountable in this proceeding for the foreseeable results of his actions. The parties have the general responsibility to conduct themselves with honor in NRC

(

proceedings as they should in a court of law. 10 C.F.R. f i

2.713. For now, however, we find that there was no i

violation of the Board's protective order in connection with

• a the FEMA meeting. This is not the same as finding that i

Mr. Fierce acted properly at the FEMA meeting.

i e

i t

i I

i  !

I l .'

( f On September 21, 1988 the Attorney General disclosed l

the name of the owner of a siren location in a filing in the "onsite" proceeding. Eut he promptly closed the breach by retrioving all copies of the protected information. This was a wholly responsible and appropriate response. The episode is of no moment except that it should have signaled the need for tighter procedures in the Office of the Attorney General.

I Assistant Attorney General Pamela Talbot, relatively new to the proceeding, apparently received no such signal.

She violated the terms of the protective order on October 7, 1988 by identifying on the public record eight bus companies in the Attorney General's Supplemental Response to Applicants' First Set of Inte rogatories. Again, the Attorney General took action to correct the error, but we don't know whether the effort was prompt enough or thorough enough.

It took until October 19 to close the breach.

Answer at 7. Recognizing that the Attorney General may continue to gather and perhaps reveal otherwise protected information from independent sources, the careless breach on October 7 is important. Accountability has been compromised.

The Attorney General argues that sanctions are not required because no harm has been done. First, according to Mr. Jonas who did not attend the hearings, the protective order was entered without any evidence of harassment of

l contractors, thus unnecessary. Answer at 8. That argument I is made to the wrong people. The Board members themselves I were harassed by emotionally volatile persons who, as i

non-parties, are beyond the Board's jurisdiction. There is i

every reason to fear that one or several of these p,rsons  ;

would attempt to intimidate contractors.

I In any event, the Attorney General's argument comes too i late. The protective order was appropriate and lawful. It was not appealed. We have recognized from the beginning l l

that t!ie spirit of such an order can be defeated by a clever i lawyer - perhaps leoally and without penalty.

But we depended upon the Attorney General's commitment to obey the t l

order in exchange for the early availability of the information. In Commonwealth Edison Connany (Byron Station l Units 1 and 2), ALAB-735, 18 NRC 19, 25 (lll3), the Appeal ,

Board noted that up to that time the Commist ion's l adjudicatory board $ have acted under the assumption that  ;

protective orders will be obeyed. Such is still the case.

We have never known of an NRC protective order being t i

l disobeyed or evaded -- or, until now, even carelessly violated.

Next the Attor" General argues that some real ef fect must be demonstrated before sanctions are justified. Answer at 8.

{

But, as a practical matter, the overriding need and I justification is to protect against future, and in this case .

1 irreparable, harm to Applicants' proprietary interest in I

t

. . _ , . . - . _ - . . , - . . - , - - - . - - . . - , _ - . - - - - _ , . _ - _ - - -f

their contracts and harm to their position in the case.

Equally important is the need *.o safeguard the integrity of the NRC adjudicatory process. Noteworthy by its absence is any assurance from the Attorney General that att ps have been taken to prevent future violations of the protecuive order.

Rather his answer sends the opposite message the protective order is not needed, may be circumvented, and 2221 hng corrective measures are sufficient.

The Commission has recommended to Boards a broad range of sanctions for parties who fail to meht their obligations.

Statement pf Poliev On Conduct of Licensino Proceedinog, CLI-81-8, 13 NRC 452, 454 (1981). The sanctions range from minor to se'rero. They can be remedies for harm done, or they may be prospective, to prevent future harm. Id.

Applicants' motion, to dismiss the respective contentions, is near the severe end of the spectrum and calls for more than is needed, either as a remedy or as a warning. The NRC Staff agrees.

Instead we impose the following dual-purpose sanctions:

1. To remedy any harm that may have been done on october 7 by revealing the names of the relevant bus companies, the Attorney General may not use any information about the bus companies gathered after october 7 as evidence or for cross-examination in this proceeding. This is a mild remedy, not one bit more than required in the circumstances.

i l

T 2.

! To prevent violations, the Attorney General is warnud that he faces more severe sanctions in the event that his agents disclose protected information in the future.

Egg Poliev Statement, sucra, at 454.

3.

Also to prevent future violations, the office of the Massachusetts Attorney General shall report to the Board what measures it has taken to prevent disclosure of information protected by the Board's order of March 23, 1988. The report shall be signed by Attorney General Shannon himself.

Finally the Board calls upon all parties and interested persons to consider carefully the consequences of evaaing tne protective order -- even by lawful means. The i

protective order does not restrict the Intervenors from fully developing their cases. Discovery into the arrangements with contractors is permitted. In fact the intervanors were invited to seek relief from the protective  !

order in any case where their discovery needs require it.  !

Order at 14-15. Public disclosure of the protected  !

i information will not aid the Intervanors' cases unless  !

non-parties int midate the contractors. Even then the Board

~

i i

will try to nullify any unfair litigative advantage. i Everyone must recognize that there is at least some significant probability tnat seabrook will nomeday operate, j

Good emergency plans must Le made without regard to this .

! adjudication. l i The Attorney General himself emphasizes that  !

A '

. l 11 . '

.w p3; the unwillingneau of the bus companies to actually respond i in a radiological omergency is a serious safety matter.

1 /.

Buses would be dcpended upon to evacuate school children, j the sick, the disabled and the aged. Answer at 10. t

I Interfering with the bus companies' agreements to respond to {

O an emergency at Seabrook is no different than disabling a safety system at the plant itself. To afford confidential

{

information to the zealots who would intimidate the bus '

companies would be irrational, non-availing and reckless. I t

ATOMIC SAFETY AND LICENSING BOARD

%d&f J4;ty Hap 6our i l

ADMINISTRAT VE JUDGE I

4 & s e^-

i tave'A. Linenbeger, Jr.

INISTRATIVE J6I)SE

/

k

" Ivan W. /// //t- 'lNAf[E

• Smith', chairman Bethesda, Maryland ADMINISTRATIVE LAW JUDGE I

.' l i,

i i

November 17, 1988 I E

i 4

i l i

t I

i i I l

l l

t l i 4 i I

e I l I l l -

i