ML20214A457
| ML20214A457 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/17/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | AMESBURY, MA |
| References | |
| CON-#486-1533 OL, NUDOCS 8611200085 | |
| Download: ML20214A457 (9) | |
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}4 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 NOV 17 P2 :30 ATOMIC SAFETY AND LICENSING APPEAL BOARD CFFri ^r --
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Administrative Judges:
Alan S. Rosenthal, Chairman November 17, 1986 Gary J. Edles Howard A. Wilber SERVED NOV 171986
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, et al.
)
50-444-OL
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(Seabrook Station, Units 1
) (Offsite Emergency Planning) and 2)
)
)
William S. Lord, Amesbury, Massachusetts, for the Town of Amesbury.
Thomas G.
Dignan, Jr.,
R.
K.
Gad-III and Kathryn A.
Selleck, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Sherwin E. Turk for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER The Town of Amesbury, Massachusetts is participating in this operating license proceeding involving the Seabrook nuclear facility as an " interested municipality."1 By September 11, 1986 order (unpublished), the Licensing Board concerned with the offsite emergency planning phase of the proceeding significantly limited the extent of that participation.
The assigned basis of the Board's action was 1 See 10 CFR 2.715(c).
8611200085 861117 PDR ADOCK 05000443 G
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2 the failure of Amesbury to comply with a June 24, 1986 Board order (unpublished) granting the applicants' motion to compel responses to interrogatories that the applicants had earlier served on Amesbury (among others).
In an October 7, 1986 order (unpublished) entered on Amesbury's objection to the September 11 order, the Licensing Board reaffirmed the imposed sanction.
In doing so, the Board acknowledged that, on July 1, 1986, Amesbury had moved for the issuance of a protective order relieving it of the obligation to respond to the interrogatories.
It concluded, however, that there had been no occasion for the Board to consider that motion because it was untimely.
Amesbury now seeks interlocutory review of the October 7 order by way of directed certification.
In reply, both the applicants and the NRC staff agree that such review is appropriate because the order threatens Amesbury "with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal."4 Those parties disagree, however, respecting 2 October 7, 1986 order at 4.
See 10 CFR 2.718(i); Public Service Co. of New
_H_ampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 41 8, 482-83 (1975).
4 See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC (Footnote Continued) 2 r-.i
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3 whether Amesbury is entitled to the ultimate relief it seeks.
The applicants maintain that the sanction imposed against Amesbury was warranted in the circumstances.
The staff believes otherwise and urges us to vacate the Licensing Board's September 11 and October 7 orders.
A.
We find no cause to reject the uniform conclusion of the litigants that at least one of the standards for directed certification is met in this instance.
The limitations imposed upon further Amesbury participation in the emergency planning phase of this proceeding are drastic indeed.
According to the September 11 order (reaffirmed in the October 7 order), Amesbury is precluded not merely from presenting direct testimony and cross-examining the witnesses proffered by other litigants but, as well, from filing proposed findings of fact and conclusions of law.
For obvious reasons, it is far preferable to have the appellate challenge to that result resolved now rather than after the hearings below have been concluded and an initial decision rendered.
(Footnote Continued) 1190, 1192 (1977).
The staff, but not the applicants, also endorses Amesbury's further claim that the October 7 order
" affect [s] the basic structure of the proceeding in a pervasive or unusual manner" (the alternative M_arble Hill standard for the undertaking of discretionary interlocutory review, ibid.).
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B.
Turning to the merits, the pivotal question is whether, as the Licensing Board concluded, Amesbury was in default of the Board's June 24 order on the applicants' motion to compel responses to their interrogatories.
We agree with the staff that, given the explicit terms of that order, the question requires a negative answer.
The June 24 order is brief and, for the convenience of the reader, its full text is reproduced in an appendix to this order.
As seen, it opens with the recitation that, on April 28, 1986, the applicants had served interrogatories on nine specified New Hampshire and Massachusetts municipalities (including Amesbury) and that, under the provisions of a prior Board order, responses to those interrogatories were due on May 14, 1986.
Then noting that a " search of the Board's records establishes that no response has been received nor has any of the entities applied for a protective order pursuant to paragraph 10 CPR 2.740(c)," the Board granted the motion to compel and directed each of the municipalities to respond to the interrogatories no later than July 3, 1986.
The order ends with this sentence:
Failure to appear or respond shall not be excused on the ground that the discovery sought is objectionable unless the person or party failing i
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to answer or respond has applied for a protective order pursuant to 10 CFR 2.740(c).'
Because the Licensing Board itself stressed that none of the municipalities had previously applied for a protective order (i.e.,
there were no such applications pending before the Board on June 24), the concluding sentence necessarily must be taken to refer to the i
significance that would attach to an application for a protective order filed after June 24.
This being so, the t
Board's order is susceptible of but one reasonable interpretation:
Amesbury and the other municipalities were being told that they had until July 3 either to respond to j
the interrogatories or to apply for a protective order.
Stated otherwise, the clear message conveyed was that, in the exercise of the discretion that it indisputably possessed,6 the Board was providing the municipalities with an additional period within which to invoke the protective order provisions of 10 CFR 2.740(c).
For, had that not been the Board's purpose, there would have been no occasion to make any reference in the concluding sentence to the
- consequences of a protective order application (inasmuch as, to repeat, none was then on file).
5 Emphasis supplied.
6 See 10 CFR 2.711.
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6 Thus, Amesbury's July 1 motion for a protective order must be treated as timely filed.
It also follows that Amesbury was entitled to have that motion decided by the Licensing Board prior to any thought being given to the imposition of sanctions against it for failing to respond to the interrogatories.7 C.
In the circumstances, both the Licensing Board's September 11 order (to the extent applicable to Amesbury) and its October 7 order must be vacated and the matter remanded to that Board for consideration of Amesbury's July 1 motion for a protective order.
In the event that the motion is denied in whole or in part, Amesbury is to be accorded a reasonable period within which to respond to those interrogatories as to which an answer is still required.
Only if there is a further default on Amesbury's part will the Board need to revisit the question of sanctions.
Although intimating no opinion on the appropriate disposition of the Amesbury motion, we note that the interrogatories rerved upon that municipality were 119 pages i
l in length.
In deciding whether a protective order is l
t 7 Contrary to the applicants' belief, it is of no present moment that Amesbury has not itself pressed the foregoing interpretation of the June 24 order.
We are obliged to give effect to the unmistakeable terms of that order no matter who brings them to our attention.
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warranted (and if so what its terms should be), the Licensing Board should focus upon whether, given the limited scope of Amesbury's articulated interest in the offsite emergency planning issues that have surfaced to date, interrogatories of such dimensions should b, deemed oppressive.
The motion of the Town of Amesbury for directed certification of the Licensing Board's October 7, 1986 order is granted; both that order and (insofar as applicable to Amesbury) the Board's September 11, 1986 order are vacated; and the cause is remanded for further proceedings consistent with this order.0 It is so ORDERED.
FOR THE APPEAL BOARD L
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J< [n ShdEmaker Secre.ary to the Appeal Board 8 That on this occasion Amesbury is obtaining the relief it sought of us should not obscure the fact that it has not invariably observed the dictates of the Commission's Rules of Practice.
We suggest that, in order to avoid any risk of the imposition of future and justifiable sanctions, its representative familiarize himself with those Rules and take pains to comply fully with them.
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APPENDIX JUNE 24, 1986 LICENSING BOARD ORDER GRANTING MOTION TO COMPEL RESPONSES TO APPLICANTS' INTERROGATORIES (CAPTION OMITTED]
On April 28, 1986, Applicants served interrogatories (in-hand or by Federal Express) on the following:
Town of Brentwood Town of Seabrook Town of North Hampton Town of Salisbury City of Newburyport Town of Amesbury Town of Rye Town of Newbury City of Portsmouth The due date for responses to the interrogatories, as established by our Order of January 17, 1986, was May 14, 1986.
On May 16, 1986, Applicants filed a Motion To Compel Response To Interrogatories addressed to each of the towns listed above and the City of Portsmouth.
A search of the Board's records establishes that no response has been received nor has any of the entities applied for a protective order pursuant to paragraph 10 CFR 2.740(c).
Accordingly, pursuant to the authority of Section 2.740 (f) (1), the Applicants' Motion To Compel is granted.
The Towns of Brentwood, Seabrook, North Hampton, Salisbury, Newburyport, Amesbury, Rye, Newbury and The City of Portsmouth are required to answer or respond to Applicants' Offsite EP Interrogatories And Request For The Production Of Documents addressed to each of these entities by in-hand
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delivery to the Board and the Applicants no later than July 1
3, 1986.
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i Failure to answer or respond shall not be excused on j
the ground that the discovery sought is objectionable unless i
the person or party failing to answer or respond has applied 1
for a protective order pursuant to 10 CPR 2.740(c).
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FOR THE ATOMIC SAFETY AND LICENSING BOARD
/s/ Helen F.
Hoyt Helen F.
Hoyt, Chairperson Administrative Judge
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