ML20211J618
| ML20211J618 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/03/1986 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1418 OL, NUDOCS 8611110192 | |
| Download: ML20211J618 (14) | |
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n DOCKETED Dated:
November 3, lh86 U
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Cf f' ' ' ~
COC-before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
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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 THE MOTION FOR DIRECTED CERTIFICATION FILED BY THE TOWN OF AMESBURY Statement of Prior Proceedings and Facts On April 28, 1986, the Applicants herein served a set of interrogatories on the Town of Amesbury (TOA), a 10 CFR 2.715(c) participant in the above-captioned proceeding.
Service was by Federal Express.
On May 16, 1986, no answers to the interrogatories or motion for a protective order having been filed by TOA, the Applicants filed a Motion to Compel Response to Interrogatories.
TOA never responded to this motion.
8611110192 861103 PDR ADOCK 05000443 O
PDR D503
S On June 24, 1986, the Atomic Safety and Licensing Board (the Board) issued an order granting the motion to compel.
The Board directed TOA to:
" Answer or respond to Applicants' Offsite EP Interrogatories and Request for the Production of Documents by in-hand delivery to the Board and the Applicants no later than July 3, 1986.
" Failure to Answer or respond shall.not be excused on the ground that the discovery sought is objectionable unless the person or party failing to answer or respond has applied for a protective order pursuant to 10 CFR 2.740(c)."
On July 1, 1986, TOA filed a document denominated as a
" Response to Order of the ASLB to Compel Responses to Applicants Interrogatories and Motion for Protective Order".
The sole ground asserted for the relief was that interrogatories could not'be served upon a 10 CFR 2.715(c) participant because such entities were not " parties."
On July 3, 1986, the Applicants filed a response to that document.
'Therein the' Applicants pointed out that the motion, having been filed after the Board had issued the order to compel, was untimely.1 On August 20, 1986, the Applicants filed a Motion for Sanctions.
In that motion, which was directed at a number of municipalities in addition 1
The Applicants' Response was mistitled " Applicants' Response to Town of Amesbury Motion to Compel."
However,'the text made clear that the document was in fact'a response of the nature described in the text. ___
to TOA, Applicants made the representation that none of the towns (thus including TOA) had answered the interrogatories, "or sought any other relief from the order [to compel].nz The motion for sanctions filed by the Applicants sought dismissal of TOA and the other municipalities from the proceeding.
TOA filed no response of any kind to the motion for sanctions until after the September 4, 1986 deadline, 10 CFR 2.730 & 2.710.
In the meantime, on September 9,
- 1986, the Staff filed a response to the Applicants' Motion for Sanctions that suggested a less drastic alternative than dismissal.
The Staff's suggestion was that the municipalities be precluded from presenting direct testimony or cross-examining any witnesses presented by other participants in the proceeding.
On September 11, 1986, the Board issued an order granting sanctions in the form
. suggested by the Staff On September 15, 1986, three days.after the Board's order was served, and some eleven days after it was due to 2
This representation was clearly erroneous in the case of TOA given the fact that TOA had filed the motion for a protective order.
As will be seen below, this motion was a legal nullity and its filing should have no effect on the result here.'
However, this does not excuse the fact that the representation was in error as a matter of.
fact.
We assure the Appeal Board that the omission was inadvertent.
It arose from the fact that the set of pleadings being used by the draftsman of the motion for some unexplained reason did not contain the TOA motion and, thus, a perusal of the index failed to advise of its existence.
fl l
be filed under,the Rules of Practice, TOA finally responded to the Applicants' Motion for Sanctions.
We assume that TOA had not yet received or heard of the Board's Order already granting the motion.
The basic argument of TOA was that sanctions should not have been imposed because the Board had not yet acted upon TOA's motion for a protective order, the existence of which TOA noted Applicants had failed to acknowledge in the motion.
On September 17, 1986, the Applicants responded to the TOA filing urging continued adherence to the Board's order of sanctions and arguing that the motion was out of time.
On September 19, 1986, TOA filed an " Objection to the Order of the Board Imposing Sanctions."
Again, TOA raised the argument that no Order should have issued until TOA's Motion for a Protective Order had been ruled upon.
On September 23, 1986, the Applicants answered this motion, arguing that the TOA Motion for a Protective Order was a nullity when filed because the Board had already issued its order on the Applicants' motion to compel.
On October 7, 1986, the Board issued an " Order (Addressing ' Town of Amesbury's Objection to the Order of the Board Imposing Sanctions (9/11/86)')."3 On October 20, 1986, TOA filed 3
.On October 9, 1986, the Staff filed a " Response to Motions Filed by the Town of Amesbury and the Town of Rye for Reconsideration of Order Imposing Sanctions" in which the Staff took the position that the sanctions on
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the Motion for Directed Certification at bar.
It is in the foregoing posture that this matter comes before this Appeal Board.
ARGUMENT I.
The Petition Does Meet One Standard for Directed Certification The action of the Board served to severely limit the rights of TOA in the proceeding.
While, for the reasons set forth below we believe tht the action of the Board was appropriate and should be upheld,.the Applicants concede that the Board's action was one which " threatened [TOA] with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal Public Service Company of Indiana (Marble Hill Nuclear Generating Station), ALAB-405, 5 NRC 1190, 1192 (1977).
TOA should be lifted.
The Staff's theory was somewhat different than that of TOA.
Staff argued that the filing of the Motion for a Protective Order by TOA constituted compliance with the Board's Order imposing the sanctions because of the language at the.end of the order quoted supra p.
2.
TOA did not argue below, and does not before this Appeal Board, that the filing of its Motion of Compel constituted compliance with the Board's Order on the Applicants' original Motion to Compel.
II.
The Motion is Without Any Substantive Merit A.
The Fact that the TOA July 1, 1986 Motion For a Protective Order Was Never Ruled Upon By the Board Prior to Ordering the Sanctions Avails TOA Nothing 1.
The Motion for Protective Order Was Filed After the Motion to Compel and After the Order Granting That Motion As appears from the Statement of-Prior Proceedings and Facts set forth above, the TOA Motion for a Protective Order, the pendency of which at the time the order for sanctions was issued is the entire basis for the relief sought here, was filed (1) some six weeks after the original deadline for responding to the interrogatories, (2) over six weeks after the original Applicants' Motion to Compel was filed, (3) and one week after the Board had issued its order compelling answers to the interrogatories.
In such circumstances that motion was a legal nullity.
If one intends to seek a protective order against a discovery request of any nature, the' request for the order must be I
filed before the response to the discovery is due.
Mitsui &
l Co. v. Puerto Rico Water Resources Authority, 93 FRD 62, 67
{
(D.P.R.
1981); United States v.
International Business l
Machines Corporation, 70 FRD 700, 701 (S.D.N.Y.
1976);
L United States v. Portland Cement Company of Utah, 338 F.
2d 798, 803 (10th Cir. 1964):
Wong Go v. Dulles, 261 F.
2d l
456, 460 (9th Cir. 1958).
r I
l l
7 It is of course true that NRC practice is not
.necessarily governed by authorities of the courts interpreting parallel rules contained in the Federal Rules of Civil Procedure.
However, there can be no good reason not to follow the lead of the Federal Courts'in these circumstances.
No legitimate interest of anyone is served by permitting a party to simply ignore discovery requests and wait to see if a motion to compel is or is not granted before acting.
Particularly is this so where, as here, TOA not only did not do anything prior to the original discovery deadline, but also failed even to respond to'the Applicants' original Motion to Compel.
2.
In any Event the TOA Motion Asserted No Proper Ground for the Relief Requested and Would Have Been Denied in Any Event for That Reason As noted in the Statement of Prior Proceedings and Facts, the sole ground asserted by TOA in its Motion of July 1, 1986 was an argument to the effect that discovery could not'be asserted against it because, as a 10 CFR l
2.715(c) participant, it was not a " party" and discovery is l
l not allowed against anyone but " parties".
Under NRC practice a 10 CFR 2.715(c) participant has l
been held to be subject to all the Rules of Procedure l
applicable to any activity it elects to engage in.
See l
l Public Service Company of New Hampshire (Seabrook Station, l
l Units 1 and 2), CLI-77-25, 6 NRC 535, 537 N.1 (1977); Gulf -
F-States Utilities Company (River Bend Station, Units 1 and 2)
ALAB-317, 3 NRC 175, 180 n.7 (1976).
And certainly it has been the practice to allow such entities to propound discovery and have discovery propounded against them.
See Houston Lighting and Power Company (South Texas Project, Units 1 and 2), LBP-83-26, 17 NRC 945 (1983).
B.
The Failure of TOA to File a Timely Response to the Applicants Motion Fe*
Sanctions Precludes the Relief Sought Prescinding from the viability and effect of the TOA Motion for a Protectiv'e Order, there is no excuse extant for the failure of TOA to respond in timely fashion to the Applicants' Motion for Sanctions.
This motion.was filed'on August 20, 1986 and served by regular mail.
Under 10 CFR 2.730, TOA had ten days to respond, to which was added five days because service had been by regular mail, 10 CFR'2.710.
This, in turn, meant that TOA had until September 4, 1986 to respond to the Motion.
TOA filed nothing with respect to the Applicants' Motion for Sanctions until September 15, 1986, a date which.was, in fact, three days after the Board had already granted the Motion and eleven days after the response was due in the first place.
J Apparently, what finally triggered some action from TOA was the fact that it received the Staff response which supported the granting of sanctions, albeit not the more drastic sanction of dismissal sought by the Applicants.
In l
r the response, when it was finally filed, TOA made no effort at all to explain why the response had not been filed in timely fashion.
Indeed, no such effort is made before this Appeal Board either.
The failure of TOA to make a timely response to the Motion for Sanctions provides an additional and independent reason for denial of the relief sought.
C.
If Made to this Appeal Board, the Staff's Argument That the Motion for a Protective Order Filed by TOA Constituted Compliance with the Board's Order Compelling Discovery Should be Rejected As stated in the Statement of Prior Proceedings and-Facts, the Staff took the position in a pleading filed with the Board below (after the Order for Sanctions had issued) that the TOA July 1, 1986 Motion for a Protective Order could be viewed as compliance with the Order of the Board entered with respect to the Applicants' Motion to Compel.
To begin with, neither in any pleading below, nor in its Motion for Directed Certification before this Appeal Board has TOA made this argument.
TOA is the only participant who knows what its subjective state of mind was and, in particular, whether~or not the language of the original Board Order granting the original Motion to Compel confused TOA into thinking that the filing of the Motion for a Protective Order constituted compliance with the Board Order.
i e
In point of fact, the Board's Order on the Motion to Compel does not appear to give a second bite at the protective order apple.
Rather, it would seem that the last sentence of the order quoted supra p.2, was simply a declaration of the law.
At least in the absence of an assertion by TOA that it so read the Order and was misled into thinking that a Motion for a Protective Order would suffice at that-late date as a response, a Staff argument to th'at effect should carry no weight.
CONCLUSION TOA ignored the interrogatories.
TOA ignored the Motion to Compel.
TOA initially ignored the Motion for Sanctions.
When the issue is Sanctions, a court or tribunal acts on the basis of sound discretion; review is undertaken based on a standard of whether what was done was an abuse of that discretion.
No such abuse occurred here.
Indeed, the Applicants submit that the Board would have been fully justified in precluding TOA from any part'icipation in this j
o proceeding whatsoever.
The Board's decision should be upheld and the Motion for Directed Certification should be denied.
Respectfully submitted,
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Thomas G7 g gnan, Jr.
R.
K. Gad, III Kathryn A.
Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Counsel for the Applicants
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by l
00LKEILD UiNRC CERTIFICATE OF SERVICE I,
Thomas G.
- Dignan, Jr., one of the attorneys for & EV -7 P3 :39 Applicants herein, hereby certify that on November 3, 1986,-
I made service of the within document by mailing copierygg g g yy thereof, postage prepaid,.to:
DOCKETING & MRvtcf.
BRANCH Alan S.
Rosenthal, Chairman Howard A. Wilber' Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 f
Gary J.
Edles Mr. Ed Thomas Atomi-Safety and Licensing FEMA, Region I App
.tl Panel 442 John W. McCormack Post U.S.
Nuclear Regulatory Office and Court House Commission-Post Office Square Washington, DC '20555 Boston, MA 02109 Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel Town Off:ce U.S. Nuclear Regulatory Atlantic Avenue Comrc.ission North Hampton, NH 03862 Washington, DC 20555
-Dr. Emmeth A.
Luebke Diane Curran, Esquire Atomic-Safety and Licensing Harmon & Weiss i
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 y
~ 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
E.
O 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 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 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 RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 i
Agency 500 C Street, S.W.
Washington, DC 20472 l._.
I.,,
O 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
' Judith H. Mizner, Esquire Charles P.
Graham, Esquire Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110 W
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Th M. Dignan ([Jf.
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