ML20207E415
| ML20207E415 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/15/1988 |
| From: | Shannon J MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6922 OL-1, NUDOCS 8808180039 | |
| Download: ML20207E415 (10) | |
Text
_ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _
00CEETE0 UDEC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 AUG 16 P3 :52 before the ATOMIC SAFETY AND LICENSING BOARDOJ 0 '-
't 00Lnii n.
_ot t
)
In the Matter of
)
August 15, 1988
)
PUBLIC SERVICE. COMPANY OF
)
Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al.
)
50-444-OL-1
)
Onsite Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
)
MASSACHUSETTS ATTORNEY GENERAL'S RESPONSE TO APPLICANTS' REVISED MOTION TO COMPEL The Massachusetts Attorney General ("Mass AG") hereby responds to the Applicants' Revised Motion to Compel.
This response is organized to correspond to the sections in the Applicants' Motion.
l 1.
Response to Motion to Compel Production of Documents Withheld as Trial Preoaration Materials.
In order for material to fall within the work-product exception of 10 C.F.R.
$2.740(b)(2), the material must be:
(1) documents and tangible things; (2) prepared in anticipation of litigation or for trial and (3) by or for another party or for that other party's representative.
Public Service Company of New Hamoshire (Seabrook Station Units 1 and 2), 17 NRC 490 at 495 (1983).
BROS 180039 800815
{DR ADOCK 05000443 PDR g
)9
The documents described in the Mass AG's response to the Applicants' document requests rest squarely within the above described exception.
During the course of his preparation of this litigation, the Mass AG has hired and consulted with acoustic experts of the firm Cavanaugh Tocci.
The documents'resulting from these consultations were prepared solgly for litigation purposes and are exactly those type of documents which the privilege was designed to protect.
Where the party asserting the privilege has shown that the material sought is protected under 10 CFR S 2.740(b)(2), the party seeking the discovery then has the burden of showing "substantial need" or "undue hardship".
Id., citing Feldman v.
Pioneer Petroleum Inc., 87 F.R.D. 86 (W.D. Okla. 1980).
Merely by stating the mechanics of the burden shift described above, which is all the Applicants have done in their devised Motion to Compel, does not constitute a showing sufficient'to justify discovery of otherwise nondiscoverable information.
Aside from failing to show the requ site need or hardship, the Applicants have not addressed any one document in particular but rather, have asserted a general need which purportedly covers all documents and all situations.
The Applicants would show the requisite hardship by claiming that, absent access to the work product of the Mass AG and his experts, the Applicants "have no other way to discover the evidentiary basis of Mass AG's contention."
Applicant's Mation, at 4.
The Mass AG's evidentiary bases for the i I l-
contention is no mystery.
They have been set forth in great detail in two sets of responses to interrogatories and document requests which in every conceivable respect asked the Mass AG to describe the factual bases for certain allegations.
See q_ts.
First set of Interrogatory Nos. 8-41, Second Set of Interrogatory Nos.
1, 3,
5, 8,
10, 11.
They were also spelled out in the formal bases submitted with the actual contention.
(
The Applicants have themselves designated and created the VANS system and have engaged their own experts to consider and analyze the fundamental facts and assertions at issue.
The information sought by the Applicants is, in fact, derived from material wholly created by the Applicants themselves.
It is difficult to believe they draw a blank as to the evidentiary basis of the subject contention.
In short, the Applicants have demonstrated neither a substantial need for the information not undue hardship in not receiving it.
2.
Response to Motion to Compel Answers to Interroaatories 6,
7.
and 42.
Insofar as this request concerns local laws or ordinances, the Mass AG has already proffered the documents pertaining to the town of Amesbury.
The Applicants can themselves determine whether their system violates the law.
Insofar as the information sought in interrogatories 6 and 7 concerns any correspondence between the Mass AG's office (or any other Massachusetts state employee) and representatives of the Massachusetts towns within the EpZ, such requests are irrelevant.
Indeed, the Board has already addressed the significance, or lack thereof, of the Mass AG's "involvement" _
in the siren warning systems of towns in the Massachusetts EpZ.
See ALAB-883, Order, p.
10 ("the loss of sirens
. did not stem from some unlawful or untoward act on the part of the Commonwealth or its agencies or political subdivisions.
Rather, it came about as a result of belated obedience to the law of that jurisdiction.")
The Applicants claim these requests are relevant based on the question "whether he [the Mass AG] is involved in proscripting the operation of the new notification system" and the allegation that the Mass AG's presumed "proscription" is semehow "the foundation of the issues he raises."
San Ap_plicants' Motion, p.
6.
The Applicants appear again to be asserting that the Mass AG is involved in the "destruction" of a siren system.
The statement directly contradicts the position of the Appeal Board in ALAB-883, pertaining, inter alia, to alleged extra-legal or illegal activities of the Commonv.'ealth of Massachusetts in general and this office in particular.
Id., pp. 8-11.
The Board could not have been more explicit regarding such claims
"[t] hat the Applicant's charges are utterly without warrant is manifest."
Id. at 10.
The Applicant should not be permitted discovery "bootstrapped" t' tom this false and entirely unsupported statement.
Interrogatory 41 requests any document which relates in any way to siren systems installed or contemplated anywhere in the Commonwealth and explicitly excludes those installed by pSNH.
Yet the only sirens at issue here are those installed by pSNH
_4 O
-- the. vat 1S system.
The' Applicants have asked to open discovery on every siten system in the Commonwealth, to be used for every conceivable purpose.
The interrogatory, in its entirety, seeks irrelevant, nondiscoverable information.
3.
Response to Motion to Compel Answers to Supplemental Interroaatories.
The Mass AG responded fully to the Applicant's earlier requests but apparently not completely enough for the Applicants because they were withholding information from the Mass AG.
Now, having belatedly provided that information, the Applicants ask the Mass AG to do precisely what 10 CFR S 2.740 says the Mass AG need not do -- supplement earlier responses.
The information was eventually proferred to the Mass AG, after the interrogatories and responses thereto had already been filed, and near the close of the discovery deadline.
As of the date of the Supplemental Interrogatory, the answers to the original interrogatories were complete.
The Applicants were in control of the information and chose to withhold it until a late date.
They must live with the adverse consequences of their tactical maneuvering.
4.
Response to Motion to Compel Answers.to Be Signed Under Oath or Affirmation.
Like the NRC, the Mass AG has participated in this case R1thout its attorneys signing interrogatory responses or briefs under oath.
To date, the Applicants apparently were satisfied with the signature of the attorneys that the responses represented the position of the parties.
It is unclear why the Applicants now demand a new procedure. d
During the parties' attempts to resolve this issue, the Applicants claimed that "under oath" responses were necessary to cross examine the witness.
The claim failed because no attorney in the Mass AG's office will be a witness in this case. -However, during the course of discovery, the Mass AG communicated with certain individuals identified in the interrogatory responses.
The Applicants are in no way prevented from cross examining those individuals.
As an accomodation, the Mass AG agreed to insert language affirming that the Mass AG's answers "accurately set [ ] forth information as is available to the Mass AG."
Egg Mass AG's Additional P.gsoonses, August 1, 1988.
All that is missing is an unnecessary personal oath of the attorneys litigating the case for the Commonwealth.
That language quoted above should put to rest any fears concerning the truth and/or completeness of any statement submitted by the Mass AG.
The responses are I
those of the Mass AG and the Applicants can rely on them as such in this litigation.
Respectfully submitted, JAMES M.
SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS By:
Stephen A. Jonas pamela Talbot Assistant Attorneys General Nuclear Safety Unit One Ashburton place Boston, MA 02108 (617) 727-2200 DATED:
August 15, 1988 _
00tKETED UNITED STATES OF AMERICA U9EC NUCLEAR REGULATORY COMMISSION
.gg gg 16 P3 52
'(Chi I
)
p p Nt.n In the Matter of
)
)
PUBLIC SERVICE' COMPANY OF
)
Docket No.(s)
)
50-443/444-OL (Seabrook Station, Units 1 and 2)
)
(Off-site EP)
)
)
CERTIFICATE OF SERVICE I,
Pamela Talbot, hereby certify that on August 15, 1988, I made ser'tice of the within MASSACHUSETTS ATTORNEY GENERAL'S RESPONSE TO APPLICANTS' REVISED MOTION TO COMPEL, by first class mail, or by Federal' Express as indicated by (*],
or by hand delivery as indicated by
(**],
to:
Ivan Smith, Chairman Gustave A. Linenberger, Jr.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
Nuclear Pegulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Jerry Harbour Sherwin E. Turk, Esq.
Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Office of General Counsel Commission 15th Floor East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814 I
H.
Joseph Flynn, Esq.
Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee Federal Emergency Management Assistant Attorney General Office of the Attorney General Agency 500 C Street, S.W.
25 Capitol Street Washington, DC 20472 Concord, NH 03301
- Docketing and Service Paul A. Fritzsche, Esq.
U.S.
Nuclear Regulatory Office of the Public Advocate Commission State House Station-112 Washington,-DC.
20555 Augusta, ME 04333 Roberta C.
Pevear Diana P.
Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A.
Backus, Esq.
Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Matthew T.
Brock. Esq.
J.
P.
Nadeau Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Road P.O.
Box 360 Rye, NH 03870 Portsmouth, NH 03801 Sandra Gavuti.
Chairperson Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street E.
Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J.
Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road (Attn: Tom Burack)
Newbury, MA 10950 Senator Gordon J. Humphrey Edward G. Molin 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton)
Newburyport, MA 01950 d
_~
Donald E.
Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03433 Amesbury, MA 01913 Drentwood Board of Selectmen Gary W.
Holmes, Esq.
RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq.
Ellyn Weiss, Esq.
Assistant Attorney General Harmon & Weiss Department of the Attorney Suite 430 General 2001 S Street, N.W.
State House Station #6 Washington, DC 20009 Augusta, ME 04333
. Thomas G.
Dignan, Esq.
Richard A. Hampe, Esq.
Ropes & Gray Hampe & McNicholas 225 Franklin Street 35 Pleasant Street Boston, MA 02110 Concord, NH 03301 Beverly Hollingworth Ashod N. Amirian, Esq.
209 Winnacunnet Road 376 Main Street Hampton, NH 03842 Haverhill, MA 01830 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atla". tic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing i
Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear Regulatory Exeter, NJ 03833 Commission Washington, DC 20555 Charles P.
Graham, Esq.
Barbara St. Andre, Esq.
McKay, Murphy & Graham Kopelman & Paige, P.C.
Old Post Office Square 77 Franklin Street 100 Main Street Boston, MA 02110 Amesbury, MA 01913 I
l
y.
o; g
Judith.H. Mizner, Esq..
R.
Scott Hill-Whilton, Esq.
Lagoulis, Clark, Hill-Whilton Lagoulis, Clark, Hill-Whilton
& McGuire
& McGuire 79 State Street 79 State Street-Newburyport, MA~l01950 Newburyport,.MA 01950 m-
' Cl 6tu_ Ce OYt& "
Pamela Talbot Assistant Attorney General' Nuclear Safety Unit Department of the Attorney General Ono Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED:
August 15, 1988 l
1
- ^ ' '
. _ _ _. _ _ _. _ _ _ _. _ _ _ _ _. _