ML20211E930
| ML20211E930 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/12/1986 |
| From: | Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-572 OL, NUDOCS 8606170063 | |
| Download: ML20211E930 (10) | |
Text
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Dated:
June 12, 1986
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UNITED STATES OF AMERICA
.s NUCLEAR REGULATORY COMMISSION g7
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before the
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ATOMIC SAFETY AND LICENSING BOA mgc ica 0
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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 NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
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APPLICANTS' RESPONSE TO JOINT OBJECTION TO MOTION TO COMPEL AND MOTION FOR LEAVE TO FILE THE SAME Under date of June 6, 1986, there was filed a pleading entitled " Joint Objection by Seacoast Anti-Pollution League, Town of Hampton Falls and Town of South Hampton to Applicants' Motion for an order Compelling Answers to Interrogatories, and Joint Motion for Protective Order."
Insofar as this " Joint Objection" is a response to the Applicants' motion to compel, no response to it is permissible absent leave.
Insofar as it is a motion for a protective order, it might be responded to as of right except that, as a motion for a protective order, it is manifestly out of time.
To avoid any question, therefore, prW#88Af g3
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the Applicants respectfully move for leave to submit the within response.
MOTION FOR LEAVE The " Joint Objection,' though nominally in the form of a response to a motion to compel, actually raises an objection to the interrogatories in question for the first time.
Because no such objection was raised by these intervenors in their filed answers, the Applicants had no basis.for legal argument as to the validity of any asserted justification for the intervenors' failure to have answered.
Believing that the Board might find the within argument helpful, they now move for leave to file the same.
RESPONSE TO SAPL ET AL. OBJECTIONS The Applicants' motion to compel had two aspects.
First:
under the structure of the interrogatories propounded by the Applicants, each intervenor was asked if it intended to litigate, as defined, each of the admitted contentions.
If the answer was an unqualified negative, then the interrogatories by their terms relieved the intervenor from responding to the balance of the interrogatories addressing that contention.
In the absence of unqualified negative, however, the document then propounded a series of specific questions on the contention.
In the case of these intervenors, their response to the first interrogatory was not an unqualified negative;
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nevertheless, each took it upon itself to ignore the
-following specific questions.
The intervenors did not, however, state any objections to the specific questions, nor did they file any motion for a protective order in respect of.them.
The problem with this manner of responding is that the interrogatories themselves conferred leave to ignore the balance of the questions in each set only if the responding party answered negating in whole any intention to litigate the contentions.
Since no such answer was filed, the intervenors were (and are) in the same position as if the conditional permission not to respond had not been contained in the interrogatories, that is to say, as if Question 1 in each set had not been asked and the succeeding questions had been asked unconditionally.
This being the case answers were and are required absent the allowance of a valid objection to the substance of the objection.
The intervenors make no cognizable argument'in their " Joint Motion" as to why they should be relieved of the obligation to answer these interrogatories.
As propounded, therefore, the interrogatories gave the intervenors only three choices:
answer an unqualified "No" to the first question in each set, answer the specific follow-up questions, or object.
The option they followed,
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none of the above, was not and is not open.
The motion to compel should therefore be allowed.2 The second aspect of the motion to compel had to do with i
Interrogatories G-1 through G-3.
These, too, were simply ignored by the intervenors who have now filed the " Joint Opposition."
These intervenors state, in their present pleading, that there are no other documents (G-1) or other studies (G-2) than those mentioned elsewhere in their answers to interrogatories -- given this, they claim, their answers were complete.
Such an answer would, of course, be unassailable if contained in the answers to interrogatories (under oath) but the Board should require these intervenors explicitly so to state in their answers.
Finally, as to Interrogatory G-3, these intervenors now object to the interrogatory on grounds of burdensomeness.
We hasten to point out that no issue is raised as 2
to the propriety of an intervenor deciding that it wishes to establish the points it has a position about solely through cross-examination.
Neither is any issue raised about the propriety of an intervenor participating in an admitted contention of another party.
Given that an intervenor has these rights, however, it is entirely fair for the
' Applicants to propound interrogatories to the intervenors designed to explore the points they intend to establish through cross-examination (or otherwise) on the other contentions in which they intend to participate.
The only burden that the intervenors are under is the self-assumed (and readily jettisonable) burden of participating in the other parties' contentions.
To argue that "(j]ustice so requires" that the intervenors be afforded the right to litigate free of the obligations of litigants is to rely upon a form of justice with which we are not familiar.
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. They claim, somewhat colorfully, that this interrogatory "goes beyond annoyance as described'at part c of 10 CFR 6 2.740'into sheer harassment."
" Joint Objection".at third unnumbered page.
Continuing, they assert:
"To expect that this general interrogatory should be responded'to for each and every specific 1
. interrogatory is unreasonable and unduly burdensome.
SAPL, South Hampton and Hampton Falls have made a1 good faith effort to provide information of this nature in the context of the response to the specific interrogatories where such information was relevant.
To expect more would be unjust, onerous and oppressive."
l Id.
Notably, these intervenors have raised no other objection to.this interrogatory.2 4
There are three defects with the burdensomeness objection that require its rejection.
First, the objection is untimely.
It was not advanced i
within the time set by this Board for answers to interrogatories, nor was any motion for a protective order filed at that time.
To the contrary, these intervenors by their own admission made.their own judgment as to the l
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Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 495-97 (1983), recognizing the applicability of Fed. R. Civ.
P. 26(b)(4) to NRC proceedings.
Depending upon whom the 4
intervenors might have consulted and whether any such person amounts to a non-testifying expert, Rule 26(b)(4) might have i
provided a valid basis for a party's objection to Interrogatory G-3.
The objection (attorney work product),
however, is a waivable one and it has been raised by the intervenors neither in their original answers nor in the pending motion for a protective order.
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extent, if any, that the substance of the interrogatory would be answered and they took it upon themselves to ignore the balance -- a form of self-help remedy.
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"[flailure to answer or respond shall not be excused on the ground that the discovery sought is objection unless the person or party failing to answer or respond has applied for applied for a protective order pursuant to paragraph (c) of this section."
10 CFR $ 2.70(f).
This doesn't mean a belated motion made only after one has been caught defaulting.
Second, a bare lament of burdensomeness is insufficient.
These intervenors have neither filed any affidavits nor made any attempt at a particularized showing as to the effort that would be required to answer Interrogatory G-3 properly.
In the absence of such a showing the " Joint Objection" amounts to a request that the Board speculate about the burden that answering would pose and about the resources available to each of the intervenors; the Board should decline such a request.
Finally, the objection that Interrogatory G-3 is unduly burdensome has been specifically rejected by the Appeal Board in Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 330-35 & n.23 (1980).
Indeed, Interrogatory G-3 is virtually verbatim the interrogatory approved in that case as not being unduly burdensome.
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4 CONCLUSION For the foregoing reasons, the motions to compel should be allowed.
tfully submitted,
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Thomas G.
Dig Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone:
423-6100 Dated:
June 12, 1986
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CERTIFICATE OF SERVICE I, Robert K. Gad'III, one of the attorneys for the Applicants herein, hereby certify that on June 12, 1986, I made service of the within " Applicants' Response to Joint Objecticn to Compel and Motion for Leave to File the Same," by mailing copies thereof, postage prepaid, to:
Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 20555 Dr. Emmeth A.
Luebke Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Suite 430 Commission Washington, DC 20009
. Washington, DC 20555 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC -20555
Atomic Sofcty and Licsnsing Robert A.
Bnckus, Ecquire App;sl Bosrd Pcnol Backua, M2yar & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 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 RED 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S.
Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 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 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RED Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary 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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s Mr. Ed Thomas Judith H. Mi nor, Esquire FEMA, Region I Silverglate, Gartner, Baker 442 John-W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 f.
a Robert K.
af III
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