ML20235V310
| ML20235V310 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/23/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#189-8215 OL, NUDOCS 8903100130 | |
| Download: ML20235V310 (13) | |
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$72 /Ji1 l
l February 23, [1989 ED v';Niic UNITED STATES OF AMERICA
-2 P2 :34-NUCLEAR REGULATORY COMMISSION before the On ATOMIC SAFETY AND LICENSING 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 l
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Off-site Emergency I
r (Seabrook Station, Units 1 and 2)
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Planning Issues
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APPLICANTS'. MOTION FOR SANCTIONS IN RESPONSE TO MASS AG'S DELIBERATE MISUSE OF PROTECTED INFORMATION Over the past two or more weeks, agents of the Attorney General of the Commonwealth of Massachusetts (" Mass AG"),
some of whon failed or refused to give their names and others who have not filed the required Affidavit of Nondisclosure, have been systematically calling the homes of SPMC bus drivers, field monitors, traffic guides,'and other private service providers and ORO volunteers.
This conduct by Mass AG has violated not only the Board's protective order in these proceedings, but also Mass AG's promise to Applicants
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l and undertakings to the Board that he would not harass such individuals in this fashion.
Accordingly, Applicants hereby l
move, pursuant to 10 C.F.R.
s 2.707, that the Board sanction 8903100130 890223 PDR ADOCK 05000443 o
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Mass AG by (1) dismissing JI Contentions 13A and D,1 34C, 50L, and 55D, F,
I, and K; (2) entering a protective order prohibiting Mass AG and other interveners from contacting i
individual SPMC service providers and ORO volunteers at their homes at any time in the future; and (3) barring Mass AG from making any evidentiary use of any information gained as a result of telephone calls made to such individuals at their l
homes after December 22, 1988.
BACKGROUND On February 17, 1988, the Board entered its Memorandum and Order (Revisino Schedule and Acorovina Protective Order)
[ hereinafter " Protective Order"), which imposed restrictions on the manner in which Interveners, including Mass AG, could use the confidential and proprietary information disclosed to them by Applicants.2 This confidential and proprietary l
information included the identities of individuals and l
1 companies providing contract services pursuant to the SPMC, as well as the identities of ORO volunteers.
The Protective i
Order provides that "5.
If authorized persons prepare papers containing protected information in order to 1
As revised pursuant to the Joint Stipulation j
Regarding Status of Admitted Contentions at 2-4 (February 7, 1989).
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The Board reaffirmed and extended the Protective i
Order in its Memorandum and Order of March 23, 1988. !
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l participate in further proceedings in this case, they will ensure that any secretary or other individual who must receive protected information in order to help prepare those papers has executed an affidavit in the form attached and has agreed to abide by its terms.
Cocies of any such affidavit will be filed with this Board and served on counsel to active carties before any orotected information is revealed to any such person."
(Emphasis added).
On October 4, 1988 Mass AG filed a request for production of documents containing the names, home addresses, and home telephone numbers of all ORO personnel.3 Pursuant to the Protective Order, Applicants provided Mass AG with the requested names (including those of ambulance drivers) but objected to producing the home addresses and telephone numbers.4 On October 7 and 19, Mass AG filed interrogatories requesting the names, home addresses, and home telephone numbers of SPMC traffic guides, road crews, bus and van drivers, and field monitoring team members.5 Applicants 3
Massachusetts Attorney General's First Request for the Production of Documents to the Applicants Regarding the Seabrook Plan for Massachusetts Communities at 6 (October 4, 1988).
4 Applicants' Response to "[ Mass AG's] First Request for the Production of Documents to Applicants Regarding the
[SPMC]" at 8-9 (November 3, 1988).
5 Massachusetts Attorney General's FirGt Set of Interrogatories to Applicants on the Seabrook Plan for Massachusetts Communities at 6, 7 (October 7, 1988);
Massachusetts Attorney General's Second Set of Interrogatories to Applicants on the Seabrook Plan for Massachusetts Communities at 8, 26 (October 19, 1988). __
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again provided the names, as protected information, but not the home addresses and telephone numbers.6 In a series of motions to compel, Mass AG demanded that i
Applicants also divulge the home towns of each individual identified.7 In doing so, however, Mass AG acknowledged that the individuals had a valid privacy interest in protecting their home addresses and telephone numbers, and also stated I
that Mass AG sought the town information solely for the purpose of determining response times:
The Mass AG needs the information concerning bus and van driver home addresses so that the Mass AG can assess likely driver response time in the event of a radiological emergency occurring during non-working hours.
Nevertheless, in recognition of the drivers' privacy interests in this information, the Mass AG moves to compel a response that would disclose only the city or town and state in which each driver resides.
Second Motion at 7; see also First Motion at 2.
Mass AG's motions to compel were settled by negotiation in early December.
Applicants agreed to provide the home 6
Applicants' Response to "[ Mass AG's] First Set of Interrogatories to Applicants on the [SPMC]" at 10-11, 11-12 (October 1, 1988), and Applicants' Response to "[ Mass AG's]
Second Set of Interrogatories to Applicants on the [SPMC]" at 11-12, 56-57 (November 1, 1988).
7 Massachusetts Attorney General's Motion to Compel Answers to Interrogatories by Applicants at 2 (November 7, 1989) [ hereinafter "First Motion"]; Massachusetts Attorney General's Motion to Compel Answers by Applicants to Mass AG's Second Set of Interrogatories at 6-7, 9 (November 14, 1988)
[ hereinafter "Second Motion"]; Massachusetts Attorney General's Motien to Compel Production of Documents at 3 (November 15, 1988).
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towns of the individual service providers and volunteers, on the strength of Mass AG's promise that the information would only be used to estimate response times.
When Applicants and Mass AG reported the results of their negotiations to the-Board, in a conference call on December 13, 1988, Mass AG repeated these assurances.8 In reliance on Mass AG's promise, Applicants gave Mass AG the requested town information on December 22, 1988, and further updated it on January 27, 1989.9 Some time after he received the town information, Mass l
AG used it (presumably by comparing it to local telephone-directories) to learn the home telephone numbers of the individual service providers and volunteers previously identified by Applicants.
Then, starting no later than the week of February 6, agents of Mass AG began systematically calling these private individuals at their homes.
Several of Mass AG's agents failed or refused to give their names when asked to do so.
Another agent refused to give her last name, but said that her first name was "Lynn"; no person named Lynn 8
Likewise, at the pre-hearing conference held in Bethesda on December 20, 1988, Mass AG stated that he intended to contact bus campanies, but said nothing about calling individual service providers at their homes.
Tr. at 15134, 15136-15138.
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Applicants' Supplemental Response to Mass AG's Discovery Requests (December 22, 1988); Applicants' Supplemental Response to Interveners' Discovery Requests j
(Janunry 27, 1989). c
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has filed an Affidavit of Nondisclosure from the Mass AG's office.
Another agent gave her name as "Kathleen (or Katherine) McKenzie"; no such person has filed an Affidavit of Nondisclosure.10 These various agents asked the service providers and volunteers a battery of questions concerning their training, their willingness to participate, their accessibility for activation, and their knowledge of what Mass AG's agents characterized as dangerous situations arising from participation in the SPMC.
Over the course of the last two weeks, reports of these telephone calls by Mass AG's agents filtered back to l
Applicants.
Upon confirming that the calls were in fact occurring, Applicants through counsel sent Mass AG a letter, attached hereto as Exhibit A, demanding that these intrusions be halted.
On Friday, February 17, 1989, Applicants' counsel were informed that the calls were continuing and immediately contacted Mass AG by telephone.ll In the ensuing discussion, Mass AG admitted that the calls to private individuals were indeed being made by Mass AG's own investigators.
10 During the week of January 23, 1989, Applicants conferred with Mass AG's staff as to whether all Affidavits of Nondisclosure executed by Mass AG personnel had been j
filed.
11 Applicants' counsel called in from vacation, since the offices of Applicants' counsel were closed for four dayJ in the course of being moved to another building.
Applicants commenced work upon this motion as soon as counsel's offices f
reopened, en February 21................
DISCUSSION Mass AG has-misused protected information and harassed private individuals in their homes.
He has done so in direct violation of his promise to Applicants, and his assurances to the Board, that he would only use that information for a single, unintrusive purpose.
Moreover, he has done.so by giving the information'to agents who (to the extent that they revealed.their identities at all) have not filed -- as they are required to do prior to receiving the information --
Affidavits of Nondisclosure.
Thus Mass AG has violated the Protective Order, as well as his undertaking.
Applicants do not bring this motion for sanctions lightly.
Applicants have not brought wuch motions at each occurence of disclosure.
Now, however, Applicants are faced with a large-scale, deliberate violation by Mass AG, which demands a response.
In the fall of 1988, after the third incident where Applicants had learned that Mass AG disclosed or invited disclosure of protected information, this Board warned Mass AG "that he faces more severe sanctions" if he violated the protective order yet again.12 The Board also exprested its concern that the predictive nature of these proceedings uculd be compromised by "any resulting intimidation of potential 12 Memorandum and Order (Rulina on Acolicants' Motion for Sanctions) at 10 (November 17, 1988).
witnesses".13 Finally, the Board called upon Mass AG to recognize that " Interfering with the [ service providers']
agreements to respond to an emergency at Seabrook is no different than disabling a safety system at the plant
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itself."14 Despite the Board's warning,,and despite its call upon-Mass AG to behave in a responsible manner consistent with his ethical obligation as an attorney and his constitutional obligations not to endanger the public safety, Mass AG has now openly and deliberately proceeded to engage in conduct prohibited by the Board and foresworn by Mass AG's own promise.
The.most severe penalty for such conduct would be dismissal of Mass AG as a party to the proceedings.
Applicants seek a limited sanction, however, one tailored as close as humanly possible to Mass AG's precise misconduct in this latest incident.
Mass AG has harassed private individuals at their homes -- thus such intrusions should be permanently prohibited, with the express' warning that any further violation will result in expulsion from these proceedings.
Mass AG has questioned these individuals j
on their training, willingness to participate, and j
accessibility -- thus the eight contention bases which 3
1 13 Id. at 6.
14 Id. at 11. __ - _ - _ __- __ - _-_-___- _ -__
squarely address these issues should be excluded.
Mass AG has violated the Protective Order, as well as his agreement, J
by making these calls -- thus he should be forbidden to make
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1 any use whatsoever of the fruits of his misconduct.
CONCLUSION Mass AG's previous violations of the Protective Order i
could be styled inadvertent.
Now, however, Mass AG has engaged in deliberate, calculated misconduct, which has harassed private individuals whose only " crime" has been to step forward into the emergency planning void created by the government of the Commonwealth.
This time, stern sanctions should be applied.
The relief sought by Applicants should be granted, in full.
Respectfully submitted,
'f 17ttrl~~
Thomas G.
Dignan, Jr.
George H.
Lewald Kathryn A.
Selleck Jeffrey P.
Trout Jay Bradford Smith Geoffrey C.
Cook Ropes & Gray one International Place Boston, MA 02110 (617)951-7000
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EXHIBIT A~
ROPES & GRAY 225 FRANKLIN STREET BOSTON, MASSACHUSETTS O2110 (617)423 610o en Pacmoenceu 1003 PENNSYLVANIA AVENUE, N w TELEX Nut 4OSft 940819 810PGftALOft BSN 30 MEMNSDY m SulTE l200 PetCMOENCE R L 02908 TELECOPIsft (4171433 2377
- te1M 423 7641 wAs>NNGTON. O C 20004 telh 4234906 teoll Sal 4400 (202)636 3900 TELECOPIERt(401) 5214980 TELECOPttR: (202) S24-396 8 1
February. 15, 1989 Bv' Hand John Traficonte, Esq.
Assistant Attorney General Department of The Attorney' General One Ashburton Place, 19th Floor-Boston, MA' 02108 s
Dear John:
It has come to our attention that bus drivers who work for companies supplying resources for New Hampshire Yankee's emergency planning have been called at their homes by
" surveyors" purporting to work for: the Attorney General for '
the Commonwealth of Massachusetts.
When asked to give their names, they declined.
You know,'of course, that the names and partial addresses of these bus drivers were given to your office on the understanding that the Attorney General was only interested in "determin(ing) the location from which these drivers may need to drive to reach their posts in the event of an emergency at Seabrook Station and, thus, to assess.the l
drivers' probable response times."
Massachusetts Attornev j
General's Motion to Comoel Answers to Interrogatories By Aeolicants, at 2.
Telephone calls to the bus drivers' homes by persons refusing to identify themselves except by their connection to the Attorney General's office constitute a violation of the Such calls right te privacy of the individual bus drivers.
I are also a violation of the Attorney General's obligations.
They should be stopped.
Ver truly yours, h-Kath yn A.
Selleck i
KAS/lme
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CERTIFICATE OF SERVICE I, Jeffrey P. Trout, one of the attorneys for thd89 MR -2 P2 :35 Applicants herein, hereby certify that on February 23, 1989, I made service of the within document by telecopying a copy thereof to the Atomic Safety and Licensing Board and j'pand delivering a copy to Carol S. Sneider, Esquire, Assis dnt;,'gg's Attorney General, Department of the Attorney General, One Ashburton Place, 19th Floor, Boston, MA 02108 as well as depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen Licensing Board Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F.
Cole Diane Curran, Esquire Atomic Safety and Licensing Board Andrea C.
Ferster, Esquire U.S.
Nuclear Regulatory Commission Harmon, Curran & Tousley East West Towers Building Suite 430 4350 East West Highway 2001 S Street, N.W.
Bethesda, MD 20814 Washington, DC 20009 Administrative Judge Kenneth A.
Stephen E. Merrill McCollom Attorney General 1107 West Knapp Street George Dana Bisbee Stillwater, OK 74075 Assistant Attorney General Office of the Attorney General 25 Capitol Street Concord, NH 03301-6397 Adjudicatory File Sherwin E.
Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A.
Backus, Esquire 3
Appeal Board 116 Lowell Street i
U.S.
Nuclear Regulatory P.
O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555 4
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l 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 Matthew T.
Brock, Esquire Shaines & McEachern 25 Maplewood Avenue P.O.
Box 360 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R.
Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Leonard Kopelman, Esquire l
One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 I
l Mr. Thomas F.
Powers, III Mr. William S.
Lord l
Town Manager Board of Selectmen 1
Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833
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H. Joseph Flynn, Esquire Charles P.
Graham, Esquire Office of General Counsel Murphy and Graham i
Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Gary W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and Mer41cholas 47 Firnacunnet Road 35 Pleasant Street H ampt eil, NH C3842 Concord, NH 03301 -_. _ -
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,c Mr. Richard-R. Donovan Judith H. Mizner, Esquire Federal-Emergency Management 79 State Street, 2nd. Floor Agency' Newburyport, MA- 01950 Federal Regional Center 130 228th Street, S.W.
Bothell, Washington 98021-9796 Ashod N. Amirian,. Esquire 145 South Main Street P.O.
Box 38 Bradford, MA 01835 Robert R.
Pierce, Esquire Atomic Safety and Licensing Board U.S.. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD-20814
.l James H.. Carpenter, Alternate i
U-Technical Member Atomic Safety and Licensing Board I
U.S. Nuclear Regulatory Commission East. West Towers Building 4350 East. West Highway Bethesda, MD 20814 i
Y Reed tdftfey P.
Trout
(*= Ordinary U.S.
First Class Mail) 1 l
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