ML20236A262
| ML20236A262 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/06/1989 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20236A265 | List: |
| References | |
| CON-#189-8241 OL, NUDOCS 8903170012 | |
| Download: ML20236A262 (15) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 MR -7 P4 :14 before the ATOMIC SAFETY AND LICENSING BOARh.j ,9; ., s. e . ,;
.m.s.
)
In the Matter of )
)
PUBLIC SERVTCE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL
) Off-site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues
) March 6, 1989 1%SEACHUSETTS ATTORNEY GENERAL JAMES M. SHANNOt{' S OPPOSITION TO APPLICANTS' MOTION FOR SANCTIONS AND CROSS-MOTION FOR PARTICULAR RELIEF INTRODUCTION Under date of February 23, 1989, Applicants filed with this Board APPLICANTS' MOTION FOR SANCTIONS IN RESPONSE TO MASS AG'S DELIBERATE MISUSE OF PROTECTED INFORMATION (" Motion"). In substance, the motion alleges that " agents" of the Massachusetts Attorney General (" Mass AG") have recently telephoned the homes of certain bus drivers, field monitors, traffic guides, and other " private service providers and ORO volunteers" whom Applicants claim will be available to assist in an emergency response to protect those in the Massachusetts portion of the Seabrook EPZ in the event of a radiological emergency at l Seabrook Station. The motion asserts that "[t]his conduct by Mass AG has violated not only the Board's protective order in these proceedings, but also Mass AG's promise to Applicants and h ADO f
undertakings to the Board that he would not harass such individuals in this fashion." Motion at 1. The relief requested
.in the motion for this alleged conduct is that the Board sanction the Mass AG pursuant to 10 C.F.R. $2.707 and (1) dismiss JI Contentions 13A and D, 34C, 50L, 55D, F, I, and K; (2) enter a new protective order " prohibiting Mass AG and other interveners from contacting individual SPMC service providers and ORO L volunteers at their homes at any time in the future; and (3) bar the Mass AG from making any evidentiary use of any information gained as a result of telephone calls made to such individuals at their homes after December 22, 1988." Motion at 1-2.
The motion should be denied in its entirety. No violation of the protective order occurred; the Mass AG never made a
" promise" not to contact service provider employees or ORO members; and no new protective order is warranted.
ARGUMENT A. Protective Order As opposed to prior situations involving the Mass AG when limited protected information was inadvertently released in filings made to NRC licensing boards, the conduct alleged here
-- using Mass AG investigators to call and seek information from ORO members and employees of service providers being relied upon by the SpMC -- does not constitute even a minor or technical violation of the Board's protective order. Such conduct is not mentioned, let alone prohibited, in that order. Moreover, as ;
the Applicants have apparently forgotten, the Board has expressly permitted the Interveners to contact employees of the
service providers. In its Memorandum and Order (Protecting Information From Public Disclosure), dated March 23, 1988, the Board stated:
The protective order is very narrow. It permits.
access to the information by the attorneys, secretaries, and investigators of the office of the Attorney General. It is similarly flexible with respect to other interveners. The interveners are permitted to conduct normal discovery-type. interviews with the suppliers. In the case of business firms, they_3.re permitted to contact the coanizant employees.
Memorandum and Order at 14 (emphasis supplied).
The motion also alleges that during these phone calls the
" Mass AG has harassed private individuals at their homes."
l Motion at 8. This extreme assertion, however, is totally .
unsupported in the motion by any specific facts. There is no supporting affidavit. The Mass AG is outraged by such a tactic
-- alleging harassment but providing no details or a single supporting affidavit. We do not dispute that Mass AG.
investigators did call and speak to about 52 of the ORO's 683 listed bus drivers, about 11 of the ORO's 130 listed traffic guides, and 2 members of the ORO's field monitoring teams, but no harassment whatsoever occurred. As is detailed in the attached Affidavit of Stephen Poitrast, regular Mass AG investigators made these calls, and they were professional and courteous in each and every conversation. Their instructions were to gather information and not to harass. Applicants' unsupported and insupportable assertion of harassment is totally unprofessional and frivolous.
The motion also alleges that the Mass AG has violated Paragraph 5 of the protective order by fail: 77 to file '
Affidavits of Nondisclosure for the Mass AG's investigators who made those calls. Motion at 1, 3, 7. Here too the Applicants' collective memory appears to be failing. While Paragraph 5 of the Protective Order issued by.the Board on February 17, 1988, does require copies of such affidavits to be filed with the Board, the Board itself, with the Applicants' express concurrence, subsequently exempted from this requirement those persons, including support staff and investigators, under the direct control of the Mass AG. In a conference call held on April 1, 1988, the following dialog took place:
MR. FIERCE: This is Allan Fierce from the Mass. AG's office. I've just walked in, and I've got just a simple housekeeping matter I'd like to raise if it's appropriate i to do so now.
JUDGE SMITH: Sure.
MR. FIERCE: I'm sending you today three affidavits, three additional individuals who are signing the affidavit under the protective order, and we would be requesting your j authorization, and I wonder if perhaps you could do that ;
for me over the phone so that I can let these people see I the material today when they need to do so.
JUDGE SMITH: Okay.
MR. FIERCE: l Two of them are my secretaries, '
Diana Smith --
JUDGE SMITH: You don't need it.
l MR. FIERCE: -- and Barbara Tansky, and the third '
is a law student who we are using as an investigator, Mark Nedlinsky.
l JUDGE SMITH: You don't need any approval for those people.
1 MR. FIERCE: We don't? Well --
JUDGE SMITH: If they're under your direct control.
MR. FIERCE: Well, I had them, I have had them sign affidavits, and I will be. sending those to you.
JUDGE SMITH: Well, see, secretaries or people undet your direct control as to whom you have a confidential relationship are not required. But that's okay, send it anyway, it doesn't hurt.
Do you agree, Mr. Dignan?
MR. DIGNAN: Yes, Your Honor.
T. 9912-9913.
In sum, the Applicants have not established that any violation of the Protective Order has occurred. Therefore, no sanction for breach of the order is warranted.
B. Breach of discoverv " qgIE.ement "
Applicants' baseless motion also asserts-that the Mass AG has breached a " promise" that the Mass AG made to the Applicants during discovery negotiations. Specifically, the Applicants assert that they " agreed to provide [the Mass AG with] the home 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."
Motion at 4-5 (emphasis supplied). Again, the Applicants fail to support these assertions of a " promise" with any affidavit detailing the facts surrounding it. The Applicants' motion goes a step farther, however, for it implies that the Applicants themselves understood that this " premise" meant that the Mass AG would not take the names and home towns, go to public telephone listings, and telephone these individuals to obtain information about response times.
L As the attached affidavit of John Traficonte sets forth,-
the Mass AG never promised to refrain from contacting individual ORO members or service provider employees, nor'did the Mass AG " promise" to use the home towns only to " estimate.
response times." That was certainly a reason the Mass AG articulated for needing the information, and the Applicants agreed that it was a valid reason But it.was just as certainly not the intent of the Mass.AG to be prohibited.from using the information in other ways consistent-with the rules of discovery and the Board's Protective Order. Upon its receipt in the Mass AG's office, the name/home town information was kept. confidential. It did not lead to unpublished, private' phone numbers; it led only to publicly listed phone numbers.
Callers were polite; n'o one was harassed. All information sought was relevant to admitted contentions.
The Applicants claim that the Mass AG " repeated these assurances" in a conference call on December 13, 1988. Motion at.5. Unfortunately, this conference call was not transcribed, for the Mass AG's recollection of it differs significantly.
The Mass AG's representative on this call, Mr. Traficonte,-
recalls this telephone conference, and he asserts in the attached affidavit that he made no " promise" to have the Mass AG refrain from contacting individual ORO member. or service provider employees, nor did he " promise" to use the home towns only to estimate response times.
Curiously, the very counsel for Applicants who now seeks sanctions based, in part, on this " promise" failed to include any reference to the purported " promise" in his proposed (draft) order memorializing the oral rulings made by the Board during this telephone conference. Of equal significance, Applicants' proposed order memorializing the December 13 conference call provides (Exhibit 8 to Traficonte Aff't at 2):
Applicants are ordered to produce the names of all separated employees who worked "for or on behalf of NHY/ORO as instructors and/or [had] responsibility for the training of personnel" at any time on or after September 1987. * *
- Mass AG may contact these employees . . . .
Applicants are to write a letter to the individuals involved, stating that Applicants are supplying Mass AG with their names pursuant to the Board's Order.
The letter should explain that the individuals are not required to talk with Mass AG and that Mass AG has been instructed not to discuss with them the circumstances of their termination, but that he is free to inquire into their work as instructors.
Applicants therefore expressly recognized that Mass AG could contact individuals who formerly served as NHY/ORO personnel; yet they assert that Mass AG was somehow barred from contacting individuals who are presently being relied upon to implement the SpMC.
As record support for the purported " promise," Applicants quote, out of context, the following paragraph from p. 8 of the Mass AG's November 14, 1988 motion to compel:
The Macs 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 l the city or town and state in which each driver
! resides.
l ._ -____ - __- _ A
q.
<g Applicants apparently believe-that.this statement about." driver response time" somehow precludes telephone inquiry into whether-those drivers will, as a threshold matter, be available to respond at all to a-Seabrook emergency and, if so, what notification and other problems'they foresee that could delay their response times. Even if the concept of " driver response time" fails to include this threshold determination, the quoted' passage, on its face, simply does not preclude use of the L
information for additional and legitimate discovery purposes.
In a motion to compel, a litigant seeks only to present valid reasons why the matter sought is subject to discovery. The
' litigant should not be understood to be limiting the uses of information once received. .Once the information is received through discovery, it can be used'for other legitimate discovery purposes not otherwise prohibited. Such was the case here.
The phrase in the above-quoted statement - "in recognition of the drivers privacy interests in this information [home addresses]") -- was not meant to be a " promise" net to contact the drivers at home. The Mass AG was simply recognizing that a
[ list of all drivers and their hcme addresses was the kind of list which if it fell into the wrong hands raised the specter that had prompted the Applicants to seek and obtain the protective order, i.e., that " undisciplined opponents to the l
Seabrook Station will improperly interfere with the arrangement between Applicants and the suppliers for the purpose of inflAtltacing_tfle he a rina . " ASLB Memorandum and Order of March 23, 1988, LBp-88-8 at 8. The Mass AG did not need to have this
1 extremely sensitive list a all drivers names with theirLhome addresses:-- in order to do the investigation he anticipated.
1 A much.less sensitive list containing names and home towns would (and did) serve his purposes just as well'.
l Applicants' reliance upon the above referenced. statement by.
Mass AG as evidence of a " promise" not to contact the drivers is therefore unfounded. Further indication of this is.found on the very page quoted by Applicants,.where Mass AG'makes the following additional comments:
With respect to' Applicants' second objection, this .:
Interrogatory simply does not seek information about issues of human behavior. The Interrogatory does ask for:a list of only those drivers who'have " agreed to -;
drive a.busLor van'into the EPZ in the event of'a radiological' emergency at Seabrook," so the information produced in response'to this Interrogatory ;
could give rise to an issue that could possibly be ;
termed ". behavioral" if driren relied up.nLbv the_SMiG l have not in fact aareed to drive into the EPZ under the_ stated conditions. Tha_t would ' no_t__bg_an_.ils_m -
however, excluded from liligation and the Mass AG l moves to compel a full-response to this Interrogatory '
to the extent a complete response has not been given based upon this objection.
Mass AG's Motion to Compel, November 14, 1988, at 7 (emphasis 1
supplied). By its terms, Mass AG statement squarely placed Applicants on notice that whether drivers "have in fact agreed to drive" is an issue to be litigated in this proceeding. ,
Necessarily, to obtain the most probative evidence on this l issue, the Mass AG needed to contact the relevant drivers. But as the Applicants well know, drivers can not be easily contacted at work; they drive vehicles and do not spend lots of time sitting in offices. The only sensible way to reach them is at 1
home.
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Plainly, Applicants had the burden of clarifying and confirming any discovery restrictions in addition to the then- l existing protective order, including any limitations on personnel contacts. If the Applicants did in fact have a misguided belief that Mass AG had promised not to contact individual service providers at home as a condition to receiving home town data, Applicants properly should have sought to memorialize this discovery " agreement" in writing.
Had they done so. the Mass AG would simply not have agreed to such an additional restriction. As the Affidavit of John Traficonte makes clear, there is simply no basis for the Applicants' assertion that a meeting of the minds in this regard had occurred.
In summary, the Mass AG has violated neither the protective order nor any " agreement" with the Applicants by politely contacting a small sample of the bus / van drivers, traffic guides, and field monitors. There is absolutely no evidence of any harassment, nor of any harm or disadvantage caused to the Applicants' case. No sanctions whatsoever are warranted for any breach of this non-existent discovery " agreement."
C. New Protective Order To the extent that the Board views the Applicants' Motion
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as a request for a new protective order, this request too should be denied. The Mass AG has done nothing to warrant the imposition of such an order, and no one need fear that he
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intends now to begin harassing bus drivers and other ORO-connected personnel. We also have no intention of voluntarily turning the name/home town lists over to groups opposed to Seabrook.
Moreover, for the Board to impose the protective order sought here, " prohibiting Mass AG and other interveners from contacting individual SPMC service providers and ORO volunteers at their homes at any time in the future," Motion at 2, is grossly unfair, overly broad, and would prevent full litigation of contested issues in violation of the Commission's dictates in CLI-87-13. It is grossly unfair because the Mass AG has done nothing to warrant such an order. A single, non-harassing, I
discovery-type telephone inquiry which went only to a very small fraction of ORO members and contracted personnel who (1) had publicly listed phone numbers and (2) when reached, were willing to speak with us, does not justify the imposition of any kind of a protective order. Even if it did, an order running to all of ORO's service providers and volunteers "at any time in the future" would be grossly overbroad. A large number of the drivers contacted were more than willing, even pleased, to talk to our investigators. Some had even contacted the Mass AG directly over the past year and are quite sympathetic. An order this broad would cut off contact with these friendly informants as well as those who did not wish to f
be bothered. Finally, such an order would directly violate the Commission's instruction that this Board regulate this information in such a fashion to " allow full litigation of l 1 L __ - - - - - - - - -
contested issues without unnecessarily violating personal privacy." EubliLS e r v i c e Co mp any_of_ Hew _ligIlip s h i r e (Seabrook Station, Units 1 and 2), CLI-87-13, 26 NRC 400, 404-405 (1987). This case is still very much alive, and so is discovery, especially regarding the June 1988 Exercise. The Mass AG needs to contact a few dozen more ORO members and service provider employees about this Exercise. 'They will all be very polite, discovery-type contacts. A protective order which blocks these contacts would not permit full litigation of a series of Exercise issues.
CONCLUSION AND MOTION FOR RELIEE For all of the reasons set forth above, the Applicants' February 23 Motion for Sanctions should be denied. However, in light of the special circumstances surrounding Applicants' l
Motion, the Mass AG moves for further particular relief as l
l follows:
- 1. Both prongs of Applicants' Motion were baseless: the l Mass AG did not violate the Protective Order and did not breach any " promise" or " undertaking" to Applicants concerning contact with service providers.
- 2. Counsel for Applicants knew or should have known that their Motion was without merit. As to the alleged violations 1
of the Protective Order, it was Applicants' counsel who had agreed that Mass AG's investigators need not file affidavits. J As to the Mass AG's alleged violation of certain " promises", as is clear from the attached Affidavit of John Traficonte, the actual situation could have been reviewed and reconstructed by 3
1 ,
Applicants counsel' before the Motion was filed. Had counsel
.done so, cert'ain. undisputed facts would have'been recognized:
1 a. .that Applicants' counsel took na Eteps to secure the agreement of the Mass AG to a restriction on_the use of the names and' partial addresses provided by Applicants;
- b. that the Mass AG was accepting this information-subject to the Board's Protective Order, and this order:did not I
prohibit contact with the relevant individuals; and ,
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- c. that there were (and are)-contentions which the Mass AG might legitimately want to develop by using this i information to make contact with specific individuals.
Further, Applicants' counsel on reflection would have also recognized.certain undiscuted principles af law:
- a. information gathered in discovery can and is used by litigants to develop and support their cases; and
- b. absent any restriction on that use, litigants are
! free to use the information gathered in any lawful' manner.
I Had counsel reviewed these facts and law, they would have recognized-that their Motion was frivolous.
- 3. Thus, characteristically, Applicants' counsel compounded their unprofessionalism: first, they produced information, which no doubt they assured their clients could not and would not be used by this office to contact specific individuals, without seeking and obtaining a " protective agreement or order" (Exhibit 3 to Traficonte Aff't at 2), which tracked their apparent beliefs about such restricted use.
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t.x Second, and more troubling, they responded, no doubt to.their clients' subsequent complaints, by firing off an unsupported Motion without checking and reviewing the facts and law to determine its merit.
- 4. Their Motion, combining as it does serious charges of dereliction of ethical and constitutional duties and other rodomontade with specific prayers for relief that would have a significant impact on this proceeding, had to be answered by the Mass AG in detail. This has now been done, with no little commitment of time and energy. Also, as should be obvious, this office has refrained from further contacts with the individuals at issue upon receipt of this motion (which states that the instant purported villainry of the Mass AG would support dismissal as a party). Obviously, a simple denial of Applicants' Motion, therefore, would not remedy this lost time and opportunity. In fact, a perceived de facto immunity surrounding the Applicants and their ultimate cause, no doubt played its part in Applicants' counsel filing this unsupported Motion, which has already partially achieved its ends.
- 5. These circumstances justify the following remedy
" tailored as close as humanly possible to [ Applicants' counsel's] precise misconduct" in this case (Applicants' Motion for Sanctions at 8): A new third filing deadline should he sat fDI. these remainiDS contentions far which the APILlicants hun souaht dismissal. Obviously, Applicants agree that information that might be gathered by the Mass AG through contacts with service providers do relate to these contentions. (That is
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i the basis for their proposed dismissal.) Applicants'. Motion was filed,and served by hand on February 23. From that date, the Mass AG has foreborne making contact with the relevant individuals. This Opposition is filed on March 6, 1989.
Assuming the Board decided this motion within 7 days of receipt (March 17), 19 days will have passed from the point at which the Applicants frore the Mass AG's discovery effort in its tracks. The April 3 deadline, therefore, should be moved forward these 19 days to April 22 (therefore to Monday April 24), 1989 for the filing of testimony by the Mass AG in support of JI Contentions 13A and D.
Respectfully submitted JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS
/
By: !M f@
phn Traficonde Allan Fierce atthew Brock Leslie Greer Pamela Talbot Assistant Attorneys General Nuclear Safety Unit One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: March 6, 1989 l