ML20236A277
| ML20236A277 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/06/1989 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | |
| Shared Package | |
| ML20236A265 | List: |
| References | |
| OL, NUDOCS 8903170024 | |
| Download: ML20236A277 (30) | |
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'4 00CKETED UNITED STATES OF AMERICA U ,.Niit p
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAWB tM -7 P4 :14 Before the Administrative Judges:,
eUa Ivan W. Smith, Chairman :
Dr. Richard F. Cole Kenneth A. McCollom
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SCRVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, EI AL. )
)
(Seabrook Station, Units 1 and 2) ) March 6, 1989
)
AFFIDAVIT OF JOHN C. TRAFICONTE I, John Traficonte, do make oath and state:
- 1. I am an Assistant Attorney General in the Commonwealth of Massachusetts and Chief of the Nuclear Safety Unit. For the relevant time period I have been in charge of the Seabrook litigation conducted by this office.
- 2. In that capacity I have been directly involved in the ongoing discovery efforts by this office which efforts are focused on developing facts and information in support of the litigative position of this office vis-a-vis the adequacy of emergency preparedness for the Seabrook EPZs.
- 3. I have been involved in all phases of this discovery activity: I have drafted initial discovery requests, drafted 8903170024 890306 PDR ADOCK 05000443 g PDR
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(or reviewed drafts'of) motions to compel responses.to;such , .
requests' reviewed answers to such motions, argued the motions when necessary before this Board, negotiated discovery disputes with counsel for the Applicants (as well;as.Other parties) when possible, memorialized those negotiations in the form of
~1etters as well as stipulations and generally tracked'the course of the discovery phase of this proceeding.in some detail. I am certainly responsible for assuring that this Joffice conduct discovery in an appropriate manner.
- 4. I have reviewed the Applicants' February 23 1989 Motion.for Sanctions quite carefully. I have reviewed the course of the discovery with particular attention to the' information relevant to the Applicants' motion ~. In what follows I trace that discovery in some detail in an effort to describe exactly what this office has done. At the outset I state unequivocally that neither I nor any member of my staff understood that this office had expressly or impliedly agreed, promised or otherwise undertook not to make contact with certain purported service providers at their homes or anywhere else that such contact might be accomplished. As is clear from what follows, I also do not believe that I or my staff was in error or mistaken in this regard.
- 5. On October 7, 1988, this office filed a First Set of Interrogatories on the Applicants. Interrogatory 4(d) sought names addresses and phone numbers of road crew " drivers".
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i Interrogatory 6(a)_ sought the names, addresses.and phone-numbers of. Traffic Guides. Interrogatories 57 and 58. sought the names of all " entities" whose personnel are providing support' to ORO for the implementation of the SpMC and the names of all personnel from'these entities who "have been, and/or will~be" 1
trained by ORO. On October 25 the Applicants filed a' Response to this First' Set of Interrogatories in which at 9-10 they provided in response to 4(d) the names of 17 road crew members, noting their' objection to the production of the. residential s
addresses and phone numbers of these individuals. The -
Applicants did provide in response to 4(a) the business' phone numbers and, business addresses of the 2 road companies for whom the 17 identified individuals worked. The' Applicants at no time orally or in writing indicated to this office that the names of these 17 individuals were provided on the express or implied condition that this office would attempt to make no contact with 'hese t individuals at home or anywhere else.
Similarly, in response to 6(a), noting their objection to producing residential addresses and phone numbers the l
L Applicants again produced the names of all Traffic Guides and again stated no conditions on this information. (No conditions in addition to the overarching obligation of this office to abide by the terms of this Board's protective Order then in place.) Further, in response to 57 and 58 the Applicants provided the computer printout attached hereto as Exhibit 1.
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(This exhibit is being withheld.from the serviceLlist). Again, no conditions were attached to the production of this-1information.
- 6. On November 7, 1988 this offi-ce moved to compel-answers to several interrogatories propounded'in the First Set, including 4(d) and 6(a). This Motion is attached as Exhibit 2.
On November, 21, 1988 the Applicants filed an answer to this motion attached hereto as Exhibit 3. -The Applicants in that answer state clearly the grounds for their objection to the production of the residential addresses and phone numbers of the individual service providers:
Applicants ... object to supplying the drivers' residential addresses and phone numbers for the reason that these drivers have significant interes.ts in keepina this information private intlndino avoidina harassment f LQFL persona D.p.p.QKed to - the 1icensing of SeabtqQA_jita.titon. . . .
(Exhibit 3 at 1-2)(emphasis supplied) 1 f- Applicants then note that this office was no longer seeking production from the Applicants of the street addresses and phone numbers of these individuals but instead the city and town of residence. Although it is obvious that the home phone number of an individual with a listed number can be directly obtained from the telephone company, the Applicants do not state or even intimate that they would produce the city or town of residence only on condition that this office agree not to contact these individuals at home. In fact, the Applicants' answer at 2 goes on to state:
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. Applicants agree-to produce the names of the city.or town and the state where'each driver lives under an appropriate otatective a91Rement or order. -(Exhibit 3 at 2) (emphasis supplied)
- 7. Similarly, this. office sought information of this general type in its Second. Set of Interrogatories filed.on'
' October 19, 1988, specifically in-Interrogatories _14 ands.98.
Again, in response the Applicants produced the names of the relevant individuals including the business address of each of some 11 field monitoring personnti. Again, nothing was said'at this time concerning any restriction'on this office with regard to contacting any of theba indisb,aals at home or anywhere" else. Again this office moved to compel further information (city or town and state). Again, the Applicants answered this motion (the answer is undated but is attached as Exhibit 4).
'The answer to this motion to compel as to Interrogatories 14 and 98 is virtually identical to the language use'd by the Applicants in their November 21 answer:
Applicants agree to produce under an appropriate protective agreement or order the names of the city or town and state where each driver lives. (Exhibit 4 at 7 and 9)
Similarly, this office on October 4, 1988 sought in a First Request for Documents (Requests Nos. 5 and 8) production of j documents that would contain personal information concerning individual service providers as well as ORO members. Again, certain information was provided by the Applicants without mention of any restrictions on its use, this office moved to i
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. compel further production (Exhibit 5 at 2-3),ca nd the
, . Applicants responded as noted above. (In fact, the Applicants-filed on November 130, 1988 a new first page to their undated.
answer to this. office's motion to compel as to'the Second Set
.of Interrogatories. This new first page simply indicates that the' position taken there should be understood as the Applicants' answer to the motion to compel further document production. Sgg Exhibit 6.)
- 8. With the discovery dispute in this posture as to these interrogatories, I engaged in negotiations with Attorney Jeffrey Trout representing the Applicants. These negotiations-began roughly around December 1, 1988 and involved over 100 separate interrogatories that were in dispute. (This-includes discovery requests originating from both parties.) At no. time during these negotiations did Mr. Trout state, indicate or intimate to me'that the Applicants'were working on the assumption that this office would not make contact with the various individuals whose names had already been provided and whose city or town the Applicants had agreed to produce "under-an appropriate protective agreement or order". (Exhibit 3 at 2.) Mr. Trout did not at any time discuss with me any form of protective order at all in this regard and certainly not one that would have entailed an obligation on the part of this office to forebear from contacting these various individuals either at home or anywhere else. Mr. Trout did not ask me to agree, promise or otherwise undertake any such restriction on the use of information already provided (as well as to be provided). Correspondingly, I made no statements in this regard at all. In fact, there was little or no discussion during these negotiations concerning the various discovery requests set forth above because the parties had essentially agreed that the information as to city and town was going to be provided and received subject to thfL_theJ1-eZis_ tid 9__PID.tGIlLliYe order as defined by the Board. Certainly, no further restrictions on the use of this information (beyond the then-existing restrictions on dissemination by this office to the public) were discussed, agreed upon or even mentioned. To the extent that the Applicants intended to seek a further restriction on the use of this information -- as might be implied in the language set forth in the Applicants' answers to the various motions to compel quoted above -- they simply did not follow up on this intent. Had such a further restriction on the use of this information been stated or even intimated I would not have agreed to receive the information on such terms.
- 9. These negotiations resolved many but not all of the then-existing disputes. In a letter dated December 9, 1988, addressed to Mr. Trout I reviewed the status of those negotiations. As to the particular discovery requests described in detail above, I stated that the Applicants "need only list the town in which the respective individuals reside."
I (Exhibit-7 at 1-2). My. letter ma'kes no mention.and contains no
-hint of any promise, agreement or undertaking by this-office to-
.restridt the use of.such information. (For.' example, byisimply' obtaining the home phone number (if listed) of-these individuals from the phone: company, we could contact these individuals at home.) As.noted, there had been no discussion of such an agreement. Mr. Trout-signed my letter. noting lthat it'
" accurately reflects the agreements reached by Mass.AG and Applicants regarding the outstanding discovery disputes between them." He then forwarded the letter to the Board. (Exhibit 7 at 6-7.)
- 10. ~ Thereupon on December 13, 1988 this Board held a pre-hearing status conference by telephone to resolve the then-existing discovery disputes as recited in my letter dated December 9,1988. Unfortunately, that conference was not transcribed. The Applicants' instant motion for sanctions represents that I " repeated ... assurances" to this Board during this conference. call that reflected an earlier " promise",
again assertedly made by me, that the information at issue (city or town of residence) would "only be used to estimate response times". (emphasis supplied) February 23 Motion for Sanctions at 5. I had made no such earlier promise. There had
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been no discussion in this regard. Mr. Trout had sought no such restriction on use from me and I had offered none. Nor would I have so agreed. My letter of December 9 makes no l
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mention of such a promise and Mr. Trout contemporaneous 1y approved'the language I had used in that letter. I do not believe I made assurances to this Board that this office, once in receipt of the information at issue, would not attempt to contact these individuals at home or anywhere else. In fact,-I do not believe that these interrogatories (which had been i resolved as indicated.in my December 9 letter) were discussed at all during this conference call.
- 11. At the request of the Board, Mr. Trout and I at the conclusion of,this conference call attempted to memorialize for the Board's signature the various rulings made. Attached as Exhibit 8 is the first draft of what became the December 19, 1988 Board Order in this regard. Mr. Trout drafted this document in the first instance. (My handwritten comments on the document were then simply passed back to.him, most of my changes were made and he forwarded the final version to the Board for its approval and signature. Ee.g Exhibit 9.) Mr.
Trout's draft contains no reference to any discussion of the relevent interrogatories about which the Applicants claim I made certain " assurances" (themselves reflecting certain earlier " promises") concerning a restriction on the use of certain persona 1'information. The December 19 Order does reflect a careful resolution of a similar issue, however. As to Interrogatories 29 and 30 of the Mass AG's First Set, the Applicants had sought and obtained with the_ agreement _ QL_ttLi.s_
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, office a restriction on the use of certain-information l regarding former employees-. Egg Exhibit 9 at 2. This restriction (not:on all contact with these former. employees but i
in the scope-of this contact) was exRressly sought by the 'l I
Applicants, initially agEDEed by me and then gJoressly agreed unon (and abioed'by) by this office. (See Exhibit 2 at 4-5:
Exhibit 3.at 3-5;' Exhibit 7 at 1;; Exhibit 8 at 1-2; and Exhibit 9 at 2). It hasfa documentary history. The " promises",
" agreements" and " undertakings" that are the subject of the-l instant motion which alleges, intet alia, 'l that this office (and the attorneys'who work in it) has j 1
breached " ethical" and " constitutional" obligations have no j I
such tangible existence. l
- 12. Finally, on December 22, 1988 the Applicants actually I
produced the information sought by this office.in the relevant.
discovery requests discussed above. Egg Applicants' i
Supplemental Response to Mass AG's Discovery Requests dated j I
December 22, 1988. This document makes no reference to any l 1
" promise", " agreement" or " undertaking" made by this office as ]
a condition (or in any other relation) for the information produced therein.
- 13. This office did understand that this information was ;
i received subject to the protective order. My staff and I have !
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. - 1 not disclosed any of.thisLinformation to the public:and have.
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l used it only.in furtherance of developing facts and~information !
l" to supportithe litigative position'ofLthis office in this a proceeding.
SIGNED UNDER.THE' PAINS AND PENALTIES OF PERJURY THIS SIXTH' DAY ;
- OF MARCH 1989. ,
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges:
Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour
)
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBI,IC SERVICE COMPANY OF NEW HAMPSHIRE, EI AL.
) ' (Off-Site EP)
)
)
(Seabrook Station, Units 1 and'2) ) November 7, 1988
)
)
MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES BY APPLICANTS Commonwealth of Massachusetts Attorney General James M.
Shannon (" Mass AG") hereby moves the Board, pursuant to 10 CFR S 2.740(f), to issue an order compelling applicants to respond to the following interrogatories objected to by applicants in
" Applicants' Response to '[ Mass AG's] First Set of Interrogatories to Applicants on the [SPMC]'" (" Applicants i Response"}. The interrogatories, applicants' objections thereto and the grounds in support of this motion are as follows, w R RJ,) f A b i ? T W'
Mass AG Interrogatory No.'4(dl asks applicants to list the names, addresses and phone numbers of the drivers.for the road crew companies. currently being relied upon to supply road crews in the event of a radiological emergency at Seabrook Station.
Applicants object to this interrogatory " insofar as it seeks residential addresses and phone numbers." Applicants' Response at 10.
Applicants provide no basis for their objection to this Interrogatory, presumably, the grounds for not disclosing the addresses are to protect the privacy interests of the drivers.
The information regarding residential addresses is nevertheless needed by Mass AG in order to determine 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 drivers' probable response times. In recognition of the driver's privacy interests, however, Mass AG moves to compel responses that would disclose only the city or town and state in which each of these dri. vers lives. To the extent that such disclosure would still infringe on the drivers' privacy interests, Mass AG's need for this information must outweigh that limited interest.
Mann AG Interrogatory No. 6(a) seeks the name, home addresses and phone numbers of each NHY ORO Traffic Guide.
Applicants object to providing the residential addresses and phone numbers. Applicants' Response at 11. Mass AG has need for this information for the same reasons set forth under Interrogatory No. 4(d) and moves to compel a response that 1
would provide the city or town and state in which each Traffic Guide lives.
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MA!Ui._6G I n t gf g gj;ta_t_o rv No 23. a s ks :
In the event of a radiological emergency at Seabrook Station, what facility does ORO intend to use as a Staging Area, assuming no changes in the zoning laws in Haverhill and no court decisions which overturn the city's interpretation of its zoning laws.
Applicants object to this Interrogatory "on the ground that it calls for speculation based on events unlikely to occur" and "on the ground it calls for legal conclusions as to whether the Haverhill Staging Area may be used under the Haverhill zoning laws as interpreted by the City of Haverhill and the courts of the Commonwealth of Massachusetts." Applicants' Response at 23.
Applicants' objections to this Interrogatory are unfounded.
The interrogatory does not call for unreasonable speculation, as can be seen by the fact that Applicants were not able to use the staging area in Haverhill during the exercise of the SpMC due to the city's determination that such use violated the city's zoning laws. The Interrogatory also does not ask for legal conclusions; it simply asks Applicants to identify what facility they intend to use as a staging area in the event the courts uphold the City of Haverhill's determination that the proposed use violates the zoning laws.
If Applicants, out of belief that the facts set forth in the Interrogatory are too speculative, have at present no alternative plans for a staging area then they may say so in their response, but if applicants do have alternative plans for a staging area they should be required to provide this information to Mass AG in response to the Interrogatory. Mass AG therefore moves the Board to issue an order compelling a response.
M3ss AG_ Interrogatories Nos. 29 and_JS ask applicants to identify all individuals who have " work [ed] for or on behalf of NHY/ORO as instructors and or had a responsibility for the training of personnel from September 1987 to the present."
Interrogatory No. 29 asks applicants to identify those persons currently working in that capacity and Interrogatory No. 30 asks applicants to identify those persons who worked in that capacity since September 1987 but are not currently doing so.
Applicants object in their response to Interrogatory No. 30 to
" disclosing the names of those individuals terminated by NHY on the grounds that this would be an impermissible invasion of privacy." Applicants' Response at 28.
Mass AG moves to compel the names of such persons who have been terminated by NHY. Mass AG may want to contact these individuals to inquire into ORO training. It is, in fact, those very individuals whose names have not been disclosed, the ones who have been terminated by NHY, who may be the most willing to talk to Mass AG.and the most forthcoming in their responses. With respect to the asserted privacy interest, applicants have not demonstrated that those individuals whose jobs have been terminated have any special interest in not having their names disclosed. There arc many reasons for which an individual could be terminated and Mass AG makes no judgment regarding these individuals based simply on the fact of their termination. Moreover, Mass AG has no intention of disclosing the names of the terminated employees to any other persons and would be quite willing to receive the names pursuant to a protective order that would prohibit Mass AG from disclosing
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individual involved.
Mass AG Interrocatorv No. Si provides as follows:
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On August 12, 1988, Robert J. Harrison, (" Harrison")
-then President declared that: and CEO of PSNH in a sworn statement
" Instability in the willingness or ability of public Service and other Joint Owners to meet their financial responsibilities to the Seabrook project jeopardizes the confidence and morale of the existing staff at Seabrook Station. The existence of NHYEC as the long term operator of Seabrook Station.will likely improve that confidence and morale, retaining loyalty of the existing personnel and attracting new employees as necessary."
In reference to this statement please provide the following information: '
- a. The names of the individuals (s) who authored, drafted and consulted edited about its this statement and those who were substance;
- b. Any and all information available or made available to Harrison and the individuals identified in response to (a) above on the basis of which or in reliance on which the statement was made;
- c. Please identify any and all documents reviewed, consulted or assembled by Harrison and the individuals identified in response to (a) above prior to August 12, 1988 which concern the subject matter of the statement;
- d. Please identify by name and position those individuals that make up "the existing staff at Seabrook Station";
- e. Please describe in what fashion and to what extent the confidence and morale of the existing staff was jeopardized by the purported financial instability; f.
Please identify by position those new employees, if any, that Harrison and the individuals identified in response to (a) above believed it was or in future would be necessary to attract.
Applicaats object to Interrogatory No. 55 on the ground that the information sought is "not ~ relevant to the subject matter
I-l cf this proceeding, to wit, the admitted contentions."
Applicants Response at 50.
The information sought by this Interrogatory is indeed. i relevant in a general manner t'o a large number of the admitted 'l contentions insofar as poor morale and lack of necessary staffing could affect almost every area of emergency response. {
More specifically, the information sought by this Interrogatory )
could well lead to the discovery of admissible evidence on Contentions JI 9, JI 11 and JI 12, contentions which all deal I
with staffing (many< key ORO staffers are employees of NHY). l The information sought is relevant in perticular to Contention j JI 9, which concerns the lack of provisions in the SPMC in the !
event of a strike or other job action, insofar as poor morale and lack of adequate staffing may well have a direct bearing on the likelihood of whether a strike or other job action is I likely to occur, and therefore the information has a direct bearing on the issue of whether a " reasonable assurance" I finding could be made in light of the SPMC's lack of provisions for a strike. The information sought also relates to these i l
contentions, which allege lack of adequate training and j i
experience, insofar as the employee turnover rate bears a direct relationship to the overall level of the staff's experience and training. Mass AG therefore moves to compel a I response. 4 Mass AG Interrocatorv No 56(b) asks Applicants to:
[S] specifically describe the training programs offered to and required of traffic guides, bus drivers and transfer dispatchers as to the . . .
methods used to develop proper skills for dealing 1
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with an evacuating population that may,be
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emotionally unstable, angry, frightened, uncooperative and/or violent.
Applicants object to this Interrogatory subpart, on.the ground that the information it' seeks is not j relevant to the subject matter of this proceeding, to wit, the admitted contentions. In particular, J
it seeks information going to human behavior issues that were not admitted by the Board.
Applicants Response at 51.
The information sought by this Interrogatory is directly
. relevant to several admitted contentions regarding training of ORO personnel, i.e., Contentions JI 13 (inadequate training of ORO workers), and JI 14 (inadequate training and lack of experience of bus drivers and other ORO staffers does not qualify them "to perform their jobs under the difficult and l confusing circumstances that will prevail in the event of a serious radiological emergncy.") -Contention JI 13, in
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particular, incorporates e number of training contentions, among which is prior Mass AG= contention 79Q which posits, in {
part, that training for Traffic Guides is inadequate for !
"dealling] with thousands of disorderly, frustrated and I frightened drivers, many of whom may have been in traffic queues for six or more hours seeking to distance themselves i from Seabrook Station." The information sought by 1
Interrogatory 56(b) is directly relevant to this contention and I l
others dealing with training and Mass AG therefore moves for an order compelling applicants to respond.
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t_ f Respectfully; submitted,-
~ JAMES.M..SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS' By: * -
Carol S. Sneider Assistant Attorney General Nuclear Safety Unit-Department of'the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 DATED: November 7,'1988 4
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I UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION : i ATOMIC SAFETY AND LICENSING BOARD ' $g.,
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Before the Administrative Judges: 00' Ivan W. Smith, Chairman ISSg Gustave A. Linenberger, Jr. /Llgk$g Dr. Jerry Harbour g FETy .,
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (off-Site EP)
OF NEW HAMPSHIRE, ET AL. )
)
(Seabroo't Station, Units 1 and 2) .) November 21, 1988
)
APPLICANT'S ANSWER IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES Attorney General for the Commonwealth of Massachusetts
(" Mass AG") moved that the Board order Applicants to provide answers or further sw wers to Interrogatories 4(d), 6(a), 23, 29, 30, 55, and 56(b) contained in Mass AG's First Set of Interrogatories to Applicants on the SPMC. Applicants respond as follows:
Interroaatorv 4(d) requests that Applicants list the names, addresses, and phone numbers of each of the drivers employed by road crew companies currently being relied upon to supply road crews in the event of a radiological emergency at Seabrook Station. Applicants have provided the names of the drivers but object to supplying the drivers' residential mappt6 llqq-EXHIBIT 3
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addresses and phone numbers for the reason that these drivers have significant interests in keeping this information private, including avoiding harassment from persons opposed to the licensing of Seabrook Station. Massachusetts and New Hampshire courts recognize an employee's right to keep confidential " facts that are of a highly personal or intimate nature," agg Bratt v. International Business Machingp Coro.,
392 Mass. 508 (1984); M.G.L. c. 214 5 18, and "information necessary to an individual's privacy," ang HAnt v. Lebanon School Board, 112 N.H. 160, 290 A.2d 866, 867 (1972). Home addresses and phone numbers constitute information that an individual must control to protect his privacy. Although Mass AG concedes that road crew drivers have " privacy interests" in this information and no longer seeks the drivers' phone numbers, Maiss AG moves to compel Applicants to disclose the city or town and state where each driver lives.
Without waiving their objection, Applicants agree to produce the names of the city or town and the state where each driver lives under an appropriate protective agreement or order.
Intarroaatorv 6(a) requests that Applicants state the names, home and work addresses, and phone numbers of eac'a of the New Hampshire Yankee Offsits Responsa Organization's
("NHY ORO") Traffic Guides. Applicants have provided Mass AG with a computer printout containing the names and work addresses of the Traffic Guides, but Applicants object to
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providing the Guides' residential addresses and phone numbers for the same reasons of individual privacy tha apply to Interrogatory 4. Mass AG is.again willing to forego his request for phone numbers but moves to compel a response that includes the city or town and state in which each Traffic Guide lives. Without waiving their earlier objection, Applicants agree to state the city or town and state where each Traffic'Guida lives under an appropriate protective order or agreement.
Intarroaatorv 23 states: "In the event of a radiological emergency at Seabrook Station, what facility does ORO intend to use as a Staging Area, assuming no changes in the zoning laws in Haverhill and no court decisions which overturn the city's interpretation of its zoning laws."
Applicants have objected to answering on the grounds that the Interrogatory calls for legal conclusions and requires speculation based on events unlikely to occur. Applicants maintain their objection, especially in view of the October 31, 1988 decision by the Massachusetts Land Court involving the Staging Area. Nevertheless, without waiving their objection, Applicants state that, at present, they have no plans for using a staging Area other tnan that at 1
145 Water Street in Haverhill, Massachusetts.
Interroaateries 29 and 30 ask Applicants to identify all individuals either presently or formerly employed by or on M
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. behalf of the NHY ORO as instructors and who have or had 1
responsibility for the training of personnel. Applicants have responded in full to the request for the names of current instructors but objected to disclosing the names of +
those individuals terminated by NHY on the ground that releasing these names would be'an unnecessary disclosure of highly personal information. Egg Iris Dura 11 v. city of Dover, 546 A.2d 1072.(N.H. 1988) (in an employment discrimination suit in which plaintiff sought access to personnel information concerning other public employees, city was permitted to delete names, and other means of identification, from documents it was ordered to produce).
Just as employees have a legitimate interest in maintaining the privacy of their personnel files, 333 Hans v. Labanon School Board, 112 N.H. 160; 290 A.2d 866, 867 (1972), so terminated employees should be entitled to have their names kept confidential. Employe$s in the private sector have an ;
j " enormous stake in the kinds of records maintained by their own employers, which can include . . . transfer, promotion, demotion, training, discipline, benefits and termination records." Arzt, Privaev Law in Massachusetts Territorial.
Informational and Decisional Riahts, 70 Mass. L. Rev. 190 No. 4 (Dec. 1985). Mass AG, however, moves to compel Applicants to state the names of the NHY ORO's terminated employees. Applicants, because they recognize that employees
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have a strong interest in maintaining the privacy of their personnel files, including their termination records, are not.
prepared to release employees' names without an order from the Board requiring them to do so. Applicants,i therefore, stand by their objection but state that ' chey will provide the names of terminated employees to Mass AG under an appropriate protective order issued by the Board that'would prohibit the disclosure by anyone of any of the names without the express authorization of the individual involved.
Interroaatorv 55 refers to a statement made by a past president of Public Service Company of New Hampchire concerning the effect on Seabrook Station staff of financial pressures experienced by the Seabrook project's Joint Owners.
The interrogatory asks Applicants to provide, inter Alia, the i
names of the statement's authors and editors, any information or documents on which the statement was based, and the extent and details of how the Seabrook Station staff's confidence and morale may have been jeopardized. Applicants objected to Interrogatory 55 because the information it seeks is not relevant to the admitted contentions.
Mass AG contends that problems of employees' morale and loyalty could affect the existence of labor disputes and determine whether Sa'abrook Station has sufficient staff to maintain an emergency response. The postulated connection between poor morale and staffing problems, however, is
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baseless. The number of ORO workers is ascertainable sufficient to maintain an emergency response. A continuing recruiting program is maintained to replace workers who leave for any reason. Mass AG's speculation about possible reasons ORO workers might leave is irrelevant to the litigation of staffing contentions. Moreover, it is absurd to argue that ORO staff, who are volunteer emergency workers, will strike 4
because of the financial condition of the entity for which they volunteer. The connection to a litigable contention is-simply non-existent.
In addition, the Board has strongly criticized Mass AG's prior attempt to question employees' loyalty. In its Memorandum and Order of July 22, 1988, the Board rejected Bases A.1 and A.3 to Mass AG's original Contention No. 83, which questioned "the commitment'of the amateur emergency worker" and alleged that "there can be no assurance that the ORO emergency workers will respond." The Board noted that Bases A.1 and A.3 to Contention No. 83 were similar to Bases E and F for MAG Contention 77. Memorandum and Order at 106. Bases E and F, which alleged that ORO would be understaffed with poorly motivated and underqualified employees, were rejected by the Board as " unprovable, '
unfounded libels." Id. at 102. After finding Mass AG's arguments to be " internally inconsistent," the Board l concluded that Mass AG's allegations about the effects of i o
/
f human behavior were " incapable of being proved or disproved in this adjudication." Id. at 106.
Since this interrogatory seeks information about
~
workers' attitudec that is irrelevant to the admitted contentions and since it appears to be advanced on the basis of unlitigable speculation, Applicants request.that the Board enter an order denying such discovery..
Interroaatorv 56(b) is part of a question which asks for.
a description of the training programs' offered to and required of. traffic guides, bus drivers, and transfer point dispatchers. Applicants have answered the sections of'the question that ask for methods used-to familiarize trainees with road systems and for data'concorr.1;3 " hands-on" or practical experience. Applicants object, however, to Part (b) which asks about training related to proper skills for " dealing with" an emotionally unstable evacuating population, because the information sought here is not relevant to the admitted contentions and because it seeks information going to human behavior issues that were not n admitted by the Board.
ORO staff are trained to. carry out their duties in an j emergency. Interrogatory 56(b) is objectionable because it suggests that special training is necessary to react to a huge range of behavioral problems, the extent and effect of which are largely unforeseeable.
L. >
l In addition, the Board has specifically decided not to admit litigation concerning the possible effects of " severe, aberrant, and irrational behavior" by a large number of individuals. 3,33 Memorandum and Order of the Bg.gId, July 22, 1988 at.107-08 (rejecting Basis C to MAG Contention No. 83).
As the Board stated, "similar issues have already been litigated." Id. at 108.
Wherefore, Applicants say Mass AG's Motion to Compel Answers to Interrogatories, directed to Applicants' Responses to Interrogatories 4(d), 6(a), 23, 29, '4 0 , 55, and 56(b),
should be denied. ;
By their attorneys, N ^ -
Thoads G. Dignan, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 Tel. (617) 423-6100
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I CERTIFICATE OF SERVICE I, Jay Bradford Smith, one of the attorneys for the Applicants herein, hereby certify that on November 21, 1988, I made service of the within document by 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 Selectman Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Forster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panal Docket (2 copies) U.S. Nuclear 'Aegulatory U.S.' Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th F1.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P. O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 i
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,1 Philip Ahrens, Esqu' ire Mr. J. P. Nadeau Assistant Attorney General Selectmen's office Department of the Attorney 10 Central Road j 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 1 25 Maplewood Avenue P.O. Box 360 General One Ashburton Place, 19th Fl.
]
Portsmouth, NH 03801 Boston, MA 02108 L I Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager -
RFD 1 - Box 1154 City Hall d Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH -03801 i
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-
' Washington,. DC 20510 Whilton & McGuire (Attn: Tom Burack) 79 State Street Newburyport,'MA 01950
- Senator Gordon J. Humphrey Leonard Kopelman,. Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord,.NH 03301 77 Franklin Street (Attn: Herb Boynton) Boston, MA 02110 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 q H. Joseph Flynn, Esquire Charles P. Graham, Esqu.re office of General Counsel Murphy and Graham 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 McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301
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Mr. Richard R. Donovan Judith H. Mizner, Esquire i Federal Emergency Management 79 State Street, 2nd Floor Agency Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W. 1 Bothell, Washington 98021-9796 l l
Ashod N. Amirian, Esquire 376 Main Street Haverhill, MA 01830 Robert R. Pierce, Esquire John H. Frye, III, Alternate i Chairman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory East West Towers Building Commission 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD.. 20814 James H. Carpenter, Alternate Technical Member Atomic Safety and Licensing ;
Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 W A A a Jay skadford Smith
(*= Ordinary U.S. First Class Mail) '
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