ML20236A287
| ML20236A287 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/29/1988 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20236A265 | List: |
| References | |
| OL, NUDOCS 8903170031 | |
| Download: ML20236A287 (19) | |
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, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, et al. ) (Off-site Emergency
) Planning Issues)
(Seabrook Station, Units 1 and 2) )
)
APPLICANT'S ANSWER IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO COMPEL ANSWERS TO MASS AG'S SECOND SET OF INTERROGATORIES On November 14, 1988, the Attorney General for the Commonwealth of Massachusetts (" Mass AG") filed
" Massachusetts Attorney General's Motion to Compel Answers by Applicants to Mass AG's Second Set of Interrogatories" (" Mass AG's Motion"). Mass AG's motion requests the Board to order Applicants to provide further answers according to certain Definitions and Instructions set forth in "(Mass AG's) Second Set of Interrogatories to Applicants on the (SPMC)" (" Mass AG's Interrogatories"). Mass AG's Motion also seeks further answers to Interrogatories 9, 10, 14, 35, 98, 105, and 111.
Applicants respond as follows:
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In his " Definitions and Instructions, Mass AG, in 1 paragraph "A",
defined "NHY" to include the Public Service
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Company of New Hampshire's New Hampshire Yankee Division and "any of its representatives, officers, employees, agents, servants, affiliates or subsidiaries." Mass AG's Interrogatories at 1.
Applicants objected to the definition of "NHY" insofar as it goes to all of NHY's " agents" because that broad term would require an unduly burdensome search.
Applicants have made inquiry of those persons likely to have information relevant to the interrogatories. Mass AG's definition would require Applicants to initiate the time-consuming and laborious process of interviewing everyone who, in any wav, acted on behalf of NHY for Ang purpose.
Applicants do not attempt to insulate themselves. Rather, Applicants objected, and continue to object, to Mass AG's use of overly broad terms.
The second definition on which Mass AG has moved to compel is contained in paragraph "F." It states, F. For any document or part of a document that was at any time, but is no longer, in Applicants' possession, custody or control, or which is no longer in existence, or which cannot be located, identify the document, state where and how it passed out of existence or why it can no longer be located and reasons therefor, and identify each person having knowledge concerning such disposition or loss and the contents of the document, i and identify each document evidencing its
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I prior existence and/or any fact concerning its nonexistence or loss. l l
Mass AG's Interrogatories at 3.
Mass AG asserts that Applicants ought to accept his definition since it is "very similar to one of Applicants' own interrogatory instructions." Massachusetts Attorney General's Motion to Compel Answers by Applicants to Mass AG's Second Set of Interrogatories [ hereinafter, Mass AG's Motion to Compel) at 3.
Applicants objected to this instruction because, unlike their own definition, which was narrowly-focused'and limited, Mass AG's instruction is completely without bounds.
Mass AG's instruction covers "any document or part of a document that was at one time, but is no longer, in l l Applicants' possession, custody or control, or which is no longer in existence, or which cannot be located," Mass AG's Interrogatories at 3, whether or not relevant to the contentions. Applicants' definition, on the other hand, only sought information on destroyed documents " required to be identified or produced in these answers," Applicants Interrogatories and Request for Production of Documents to All Interveners and Participating Local Governments Concerning Joint Interveners Contentions 1-26 (hereinafter Applicants' Interrogatories) at 4. For this reason,
j Applicants maintain their objection and request the Board to enter a protective order denying discovery.
Interrocatorv 9 asks:
For schools in the Massachusetts EPZ which have engaged-in no prior planning for a radiological emergency, does the SPMC depend or rely upon the administrators and teachers at these schools to behave and respond in certain ways to implement the SPMC for the l children in their schools in the event of a radiological emergency at Seabrook Station? If so, describe specifically the administrator and teacher behavior (s) and/or response (s) the SPMC depends or relies upon for each of the precautionary and protective actions which may be !
l recommended for schools under the SPMC.
Mass AG's Interrogatories at 6. Applicants objteted to this interrogatory to the extent it seeks information regarding human behavior issues, a subject previously litigated and not admitted by the Board in this proceeding. Egg Memorandum and .
order of the Board, July 22, 1988 at 72, 73 (rejecting Bases l N, Q, R, and S.1 to MAG Contention No. 47). The Board noted that Bases N, Q, R, and S.1 to MAG Contention 47 were " human-behavior considerations, alleging, for example, role-conflict and abandonment by school-bus drivers and teachers." Id. at 71.
In evaluating these arguments, the Board first observed,
"[t]he human behavicr issues were in fact litigated under other broad issues . . .. The Attorney General participated in the litigation of those issues." Id. at 72. The Board concluded that "(e)xcept for the baseless assumption that l
l actors in school-oriented emergency activities will not trust -
the Applicants' offsite Response organization, there is nothing fundamentally new about Bases N.-Q, R and S.1. They are not accepted." Id. at 73.
Moreover, without waiving their objection, Applicants fully e.nswered the interrogatory by' responding in the negative.
Applicants maintain their objection and further state that, to the extent Mass AG is seeking more information than his interrogatory sought, he 173 out of time.1 Applicants object and move for a protective order denying
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discovery.
Interroenterv 10 states:
For schools in the Massachusetts EPZ which have engaged in no prior planning for a radiological emergency, does the SPMC depend or rely upon the regular school bus drivers for these schools to behave and respond in certain ways to implement the SPMC in the event of a 1 radiological emergency? If so, describe specifically the bus driver behavior and/or response the SPMC depends or relies upon for each of the precautionary and protective actions which may be recommended for schools under the SPMC.
Mass AG's Interrogatories at 6-7. Applicants objected to this interrogatory insofar as it seeks information regarding 1
Mass AG in effect poses a new interrogatory, too late and contrary November 9, to this Board's ruling, 133 Memorandum of <
November 3, 1988 at 1 ("The Board has ruled that as of 1988, all new discovery against the Applicants . .
. has ended.")
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human behavior issues for the reasons set forth in Applicants' response to Interrogatory 9. " Role conflict and abandonment by school bus drivers" has already been litigated and the Board has decided not to admit such issues for further litigation.
Memorandum and order of the Board, July 22, 1988 at 72, 73 (rejecting Bases N, Q, R and S.1 to MAG Contention -}hs. 47) .
Furthermore, without waiving their objection, Applicants emphasize that they have fully answered the interrogatory by responding in the negative. Applicants object to what is in effect a new interrogatory,'out of time and contrary to the Board's ruling, as noted above in n.l.
Literroaatory 14 asks Applicants, int;3r alia, to " list the names, addresses, and phone numbers of each (bus or van company) driver who has agreed to drive a bus or van into the EPZ in the svent of a radiological emergency at Seabrook."
Mass AG's Interrogatories at 8. Applicants have provided a computerized list of the names of all bus and van drivers.
Applicants objected to this interrogatory to the extent that it seeks home addresses and home phone numbers.
Massachusetts and New Hampshire courts recognize an employee's right to keep confidential " facts that are of a highly personal or intimate nature," 133 Bratt v.
j International Business Machines Corn., 392 Mass. 508 (1984); I M.G.L. c. 214, 9 1B, and "information necessary to an
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1 individual's privacy," 133 Mans v. Lebanon School Board, 112 N.H. 160, 290 A.2d 866, 867 (1972). Home addresses and
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phone numbers constitute information that an individual must control to protect his privacy. Mass AG concedes that the drivers have " privacy interests" in this information and no longer seeks the drivers' phone numbers. Mass AG, however, moves to compel Applicants to disclose the city or town and !
state where each' driver lives. Without waiving their objection, Applicants agree to produce under an appropriate protective agreement or order the names of the city or town and the state where each driver lives.
Applicants also objected to Interrogatory 14 insofar as it seeks information solely about issues of human behavior excluded by the Board and thus not relevant to the admitted contentions.
Questions of role conflict and abandonment have already been litigated and were not admitted by the Board in this proceeding. Egg Memorandum and Order of the Board, July 22, 1988 at 71-73 (rejecting Bases N, Q, R, and 5.1 to MAG' Contention No. 47). To the extent that Interrogatory 14 seeks information about previously litigated human behavior issues, Applicants request that the Board enter a protective order denying discovery.
Interroaaterv 35 states:
List the names and addresses of the current companies relied upon by the SPMC to provide ambulances or other vehicles
. _ _ _ - _ _ _ _ _ - _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - - _ _ - _ _ _ _ _ - - _ _ _ - _ _ _ = _ _
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for medical transport du radiological emergency., ring a company For each also provide the total number of drivers 3 and the total. number-of other ambulance personnel who have agreed to travel into the Seabrook EPZ during.an emergency response. Indicate for each company whether the drivers and accompanying personnel have signed letters of-agreement indicating a willingness to provide such services. If no such agreements exist, what assurances doLyou have that.the driver and other personnel will respond in a radiological emergency.
Mass AG's Interrogatories at 12. Applicants provided the names and addresses of each ambulance company. Applicants, however, objected to this interrogatory insofar as it seeks information solely about issues of human behavior excluded by the Board and thus not relevant to the admitted contentions.
Again, Applicants note that such issues have been previously litigated and that the Board has refused to permit further litigation of questions concerning human behavior. 133 Memorandum and Order of ths Board, July 22, 1988 at 38 (rejecting Basis E to MAG Contention No. 18), and at 71-73 (rejecting Bases N. Q, R, and S.1 to MAG Contention No. 47).
Thus, Applicants maintain their objection and, to the extent P that Interrogatory 35 seeks information about human behavior t'
issues, request that the Board enter a protective order denying discovery.
Interreaatorv 98 asks Applicants, intgg 1114, to identify the locations of work and residence for those ORO L
personnel identified as field monitoring teams." Applicants' answer included all the work locations of ORO field teams personnel.
Applicants objected to providing home addresses.
Massachusetts and New Hampshire courts recognize an employee's right to keep confidential " facts that are of a highly personal or intimate nature," gas Bratt v.
International Business Machines Core._, 392 Mass. 508 (1984);
M.G.L. c.
214, $ 1B, and "information necessary to an individual's privacy," gas Mang v. Lebanon school Board, 112 N.W. 160, 290 A. 2d 866, 867 (1972). Home addresses constitute information that an individual must control to protect his privacy.
Mass AG now states that the interrogatory "does not ask for home addresses, but merely the ' locations of residences.'" Mass AG's Motion at 9. Mass AG thus moves to compel Applicants to disclose the city or town and state in which each of the ORO field monitoring team personnel resides.
Without waiving their objection, Applicants agree to produce under an appropriate protective-order or agreement the names of the city or town and the state where each of the ORO field monitoring personnel resides.
Interrocaterv 105 asks Applicants to " identify and describe all studies or analyses the purpose of which was to compare the projected dose to the population in the event of an accident at Seabrook Station assuming different protective p
action recommendations were made and followed." Mass AG's Interrogatories, at 27. Applicants objected to this interrogatory on the ground that it seeks information not i
relevant to the admitted contentions on the SPMC. The Board has excluded litigation of comparisons of projected dose savings. N.H. Hearings 11/16/87 Tr. 5608-09, 11/18/87, Tr.
5961. "The (NRC's Emergency Planning]... rule makes clear !
that every emergency plan has to be evaluated for adequacy on !
its own merits, without reference to the specific dose reductions which might be accomplished under the plan, or to the capabilities of any other plan." Tr. 5608. By not-allowing litigation of dose reductions that "might" be J accomplished, the Board rejected debate about comparisons of projected doses of radiation. Therefore, Applicants maintain their objection and request that the Board enter a protective order denying discovery. l Interrogatory 111 asks Applicants to " identify and j
describe any studies or analyses concerning Seabrook site !
l meteorology." Applicants objected to this question on the l ground that the information it seeks goes to matters properly before the Onsite Board. Without waiving their objection, Applicants agree to produce the requested information.
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ConclusiGD 1 f
Wherefore, Applicants say Mass AG's Motion to compel Answers to Mass AG's Second Set of Interrogatories should be denied with the exceptions noted.
By their attorneys, ufsf k "TEomafs G. Dignan, Jr.
George H. Lewald.
Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street '
Boston, MA 02110 (617) 423-6100 Counsel for Aeolicanta RECE.'VED NOV 291988 NUCLEAR SnniTY UNIT f ,
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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 PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, EI AL. )
)
(Geabrook Station, Units ~1 and 2) ) November 15, 1988
) d MASSACHUSETTS ATTOKNEY GENERAL'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS The 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 the Applicants to produce certain documents, the production of which was objected to in " Applicants' Response to '(Mass AG's] First Request for the Production of Documents to the Applicants Regarding the (SPMC]'" (" Applicants' Response"). The objections thereto and the grounds in support of this motion are as follows:
INTRODUCTION The Mass AG is in the process of reviewing documents that have been produced at Seabrook Station in response to the Mass AG's First Request. This review has taken two (2) full days and is not yet completed. Because of the tremendous volume of 1 r bh
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documents-which the Applicants have agreed to produce,'as set forth'in the Applicants' ' Response, have been.made available.
As such, the Mass AG reserves the right to move to compel additional production of documents upon completion of the aforementioned review.
GROUNDS IN SUPPORT OF THE MOTION
.Qbiections to Definitions and Instructions Applicants object to producing documents in the hands of
" agents" of NHY. Mass AG moves to compel the production of those documents responsive to his requests that are in the por. session of NHY's agents for the>same reasons as set forth in Mass AG's Motion to Compel Answers'by Applicants to Mass AG's Second Set of Interrogatories, dated November 14, 1988, at p. 2.
Mass AG Raouest No. 5 asks for; recruitment and application forms completed and submitted to NHY. Applicants object to the disclosure of " personal information" pertaining to ORO' applicants or members as having " marginal" or "no relevance" to the issues at hand. Yet, the Applicants have made.no reference to the content or nature of such " personal information."
Presumably, the Applicants are seeking to withhold the addresses of ORO applicants or members. However, that information should not be withheld. Egg Pottle v. School Committee of Braintree, 482 ME 2d 813, 395 Mass. 861 (1905) (no privacy Interest applies to the home addresses of individuals where that information is a matter of public record.) The scope of discovery is broad and where the information sought
L appears calculated to-lead to the discovery of admissible evidence, that information'should be disclosed. 10 CFR S 2.740(b)(1). l Mass AG Recuest No. 8 asks for listings, rosters, and directories of persons comprising NHY's ORO on certain dates. ,
Applicants' objection, to the extent that it seeks to omit information pertaining to the home addresses of those individuals, should be rejected for the same reasons as set forth in the discussion following Mass AG Request No. 5.
Mass AG Recuest No. 16(h) asks for correspondence and records of communication, made after January 1, 1987, and which refers to, pertains to or contains information relevant to emergency response planning for a radiological emergency at Seabrook, or the refusal to engage in such planning, or the assessment of response capability, between NHY and/or ORO and agencies, departments, or branches of the State of New Hampshire, and any of their current or former officials, administrators or employees.
Applicants object to this request because they "do not believe that subpart (h) . . . pertain (s) to issues in the admitted contentions." Insofar as there are documents in category (h) that concern the coordination of effort between NHY and/or ORO and a state government (in this instance, New Hampshire), such documents are indeed pertinent to the admitted contentions. Moreover, Applicants' " belief" cannot-be a means of precluding the discovery of information which, as in this case, is reasonably calculated to lead to the discovery of admissible evidence. 10 CFR S 2.740(b)(1).
Mass AG Recuests 16(i) and 16(il csk for information pertaining to transit dependent individuals and individuals 1
having sensory impairments, movement impairments, or '
mental /en.otional impairments, as well as those organizations assisting persons with such impairments. The Applicants object to disclosing the identities of individuals who have confided their special needs to the Applicants for purposes of emergency planning. The Mass AG agrees that these privacy interests are real and substantial. However, without this information the Mass AG cannot know or evaluate what, if any, special needs have been adequately addressed and what individuals requiring special needs are being accounS.ed for. As such, the Mass AG requests that the Board expand the terms of the existing protective order so that the Mass AG may fully review and assess this matter.
Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL COMt'4NWEALTH OF MASSACHUSETTS
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By: !O 'M 'I Pamela Talbot ' '
Assistant Attorney. General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 DATED: November 15, 1988
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l UNITED STATES OF AMERICA f NUCLEAR REGULATORY COMMISSION e
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In the Matter of )
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PUBLIC SERVICE COMPANY OF ). Docket No.(s)
(Seabrook Station, Units 1 and 2)
) 50-443/444-OL-1
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CERTIFICATE OF SERVICE I,
Pamela Talbot, hereby certify that on November 15, 1988 I made-service of the within ANSWERS OF THE MASSACHUSETTS ATTORNEY GENERAL TO !
l THE APPLICANTS' REQUESTFORADMISSIONSTOMASSACHUSETTSATTORNEYGENERAL' JOINT INTERVENERS ANSWERS TO APPLICANTS' REQUEST FOR ADMISSIONS TO INTERVENERS; MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO COMPEL PRODUCTIO.
OF DOCUMENTS; and MASSACHUSETTS ATTORNEY GENERAL'S RESPONSE TO APPLICANTS' SECOND REQUEST FOR PRODUCTION OF DOCUMENTS, by first-class mail, or by Federal Express, as indicated by [*] to the following parties:
Sherwin E. Turk, Esq. *Ivan W. Smith, Chairman U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissi Office of General Counsel Atomic Safety & Licensinq Uoard 15th Floor East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814
- Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 i
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- Dr. Jerry HO bour
- Robert R. Pierce, Esq.
Atomic Safety & Licensing Bd. Atomic Safety & Licensing Bd. {
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 H. Joseph Flynn, Esq. Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee Federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W. 25 Capitol Street Washington, DC 20472 Concord, NH 03301
- Docketing and Service Paul A. Fritzsche, Esq.
U.S. Nuclear Regulatory Office of the Public Advocat6 Commission State House Station 112 Washington, DC. 20555 Augusta, ME 04333 -
Roberta C. Pevear Diana P. Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A. Backus, Esq.
Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atomig Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Matthew T. Brock. Esq. J. P. Nadeau Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Road P.O. Box 360 Rye, NH 03870 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
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Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road (Attn: Tom Burack) Newbury, MA 10950 Senator Gordon J. Humphrey Edward G. Molin 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Conald E. Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Streec Exeter, NH 03833 Amesbury, MA 01913 Brentwood Board of Selectmen Gary W. Holmes, Esq.
RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq. Diane Curran, Esq.
Assistant Attorney General Harmon, Curran & Towsley Department of the Attorney Suite 430 General 2001 S Street, N.W.
State House Station #6 Washington, DC 20009 Augusta, ME 04333
" Thomas G. Dignan, Esq. Richard A. Hampe, Esq.
Ropes & Gray Hampe & McNicholas 225 Franklin Street 35 Pleasant Street Boston, MA 02110 Concord, NH 03301 Beverly Hollingworth Ashod N. Amirian, Esq.
209 Winnacunnet Road 376 Main Street Hampton, NH 03842 Haverhill, MA 01830 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director 1110 Wimbledon Drive Town of Brentwood McLean, VA 22101 20 Franklin Street Exeter, NJ 03833
Charles P. Graham, Esq. Barbara St. Andre, Esq.
Murphy & Graham Kopelman & Paig*, P.C.
33 Low Street '77 Franklin Strbst Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq. R. Scott Hill-Whilton. Esq.
Lagoulis, Clark, Hill-Whilton Lagoulis, Clark, Hill-Whilton
& McGuire & McGuire 79 State Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950
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Pamela Talbot l Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: November 15, 1988 I
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