ML20236D341

Applicant Response to Commonwealth of Ma Atty General cross- Motion for Particular Relief.* Cross-motion Should Be Denied

ML20236D341
Person / Time
Site:	Seabrook
Issue date:	03/16/1989
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20236D344	List: ML20236D341 ML20236D375 ML20236D378 ML20236D394 ML20236D415
References
CON-#189-8319 OL, NUDOCS 8903230060
Download: ML20236D341 (9)

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1 29 wm 20 P3 37 l March 16, 1989 nrot , a I' togg . y j. q?

UNITED STATES OFtAMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE 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

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APPLICANTS' RESPONSE TO "[ MASS AG'S]

CROSS-MOTION FOR PARTICULAR RELIEF" On March 6, 1989 the Attorney General for the Commonwealth of Massachusetts (" Mass AG") filed a document styled as " Massachusetts Attorney General James M. Shannon's Opposition to Applicants' Motion for Sanctions and Cross-Motion for Particular Relief" (hereinafter " Cross-Motion").

This " Cross-Motion" is predicated entirely upon four errors of fact. The Cross-Motion accordingly should be denied.

BACKGROUND On February 23, 1989, Applicants filed their Motion for Sanctions in Response to Mass AG's Deliberate Misuse of Protected Information. This motion brought to the Board's attention the fact, which Mass AG has admitted, that Mass 0

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I AG's agents were telephoning individual ORO volunteers and service providers at their homes. Cross Motion at 3.

Applicants asked the Board to stop Mass AG (or other Interveners) from utking any further such calls, and to sanction him for thus invading the privacy of those individuals.

In response, Mass AG filed his Cross-Motion, which  !

charges Applicants with making a " baseless" and " totally unprofessional and frivolous" motion. Cross-Motion at 5, 3.

Mass AG further charges that Applicants " knew or should have known" that (1) no harassment occurred; (2) no agreement j protecting the privacy of the individuals called existed; (3) no violation of the Board's protective order occurred; and (4) Mass AG refrained from conducting further discovery because of Applicants' motion. Isl. at 12 and nassim.

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1 ARGUMENT j I. MASS AG'S ERRONEOUS STATEMENTS The charitable description of each of Mass AG's four 1

charges is " erroneous". As to the first three, Applicants U did have a good-faith basis for believing that harassment had occurred, that an agreement had been broken, and that the l l

protective order had been violated. As to the fourth, Mass l AG's own witness states that Mass AG stopped his discovery i

efforts a full week before Applicants filed their motion.

Moreover, Mass AG had enough information to know that the I

charges were baseless when he made them.

A. Whether Harassment Occurred j Mass AG admits that his agents called 65 individual ORO volunteers and service providers at their homes. Cross- l Motion at 3. Indeed, Mass AG's witness states that only a i

lack of time and manpower kept him from calling hundreds of l I

Poitrast ("Poitrast 2

other persons. Affidavit of Stephen C.

Aff.") at $$ 9-10. Mass AG characterized this campaign of calls as a " single non-harassing, discovery-type telephone  !

l inquiry which went only to a very small fraction of ORO members and contracted personnel who (1) had publicly listed l t

phone numbers and (2) when reached, were willing to speak

" Cross-Motion at 11.

with us .. . . .

The facts, however, are radically different from Mass AG's brithe characterization. Attached hereto are affidavits i

b provided by several of 'te persons actually called by Mass AG.1 These affidavits show that Mass AG made. repeated,

" pushy" and " belligerent" calls to persons who were not informed that they did not need to answer, and to whom Mass AG's callers did not identify themselves fully, or at all.

In at least one instance, Mass AG obtained by unknown means the number of a woman whose telephone is not " publicly l

listed."

Indeed, more than just harassment has occurred. Now that Mass AG has reached directly into their homes, these private individuals -- bus drivers, utility linemen, and the like -- are afraid that the Attorney General's office will retaliate against them further for their participation in Seabrook's emergency plan. Affidavit of William James Daley, Jr. ("Daley Aff.") at 15 4, 6-8. Mass AG has intimidated these people. l Thus Mass AG's charge that Applicants "know or should have known" that no harassment had occurred rings hollow.

Applicants knew, based on the reports and documents that they l had received, that harassment was taking place, and Applicants based their motion on that knowledge. Daley Aff. l i

1 These persons asked that their privacy be protected, ,

to the extent possible, by sending copies of their affidavits only to the Board members, Mass AG, and the Staff. '

Applicants have respected and complied with that reguest.

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at 1 2; Affidavit of Jeffrey P. Trout (" Trout Aff.") at 1 9; l Affidavit of Jay Bradford Smith (" Smith Aff.") at 1 9.

Moreover, Mass AG knew that Applicants had a good-faith basis for their motion. Applicants informed Mass AG of this harassment, in writing, on February 15. See Letter of j l

Kathryn A. Selleck to John Traficonte, February 15, 1989, Exhibit A to Applicants' Motion for Sanctions In Response to Mass AG's Deliberate Misuse of Protected Information (February 23, 1989). Applicants repeated their belief to l

Mass AG, orally, on March 3. Trout Aff. at 1 10. The charge, when made on March 6, was baseless.

I B. Whether An Aareement Was Breached Mass AG argues that this Board " expressly permitted" him to call private individuals participating in the SPMC at home. Cross-Motion at 2-3. Accordingly, he asserts, he did f not need to enter into any protective 'areement with Applicants to get the information which he ultimately used to l get those persons' home telephone numbers, and thus would not have made such an agreement. Id. at 10.

Mass AG is wrong again. This Board never " expressly permitted" Mass AG to call private individuals at home. To the contrary, in the very Memorandum and Order cited by Mass i

! AG for the opposite proposition, the Board held that "we authorize the Applicants to redact home Dhone numbers because they are irrelevant to the issues. Drivate, and would serve l

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no discovery ourpose." Memorandum and Order (Protecting 1 Information From Public Disclosure) at 17 (March 23, 1988) )

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(emphasis added).

Applicants had thus secured a Board order protecting these home telephone numbers. The dilemma remained, however, l

I that Mass AG could himself secure most of those numbers if he l was given the home addresses of the individuals.

Accordingly, Applicants withheld those addresses too, until  !

Mass AG stated that he wanted only the home towns, and those only for the purpose of ascertaining response times. Smith Aff. at 1 5. With that limitation, Applicants agreed to reveal the home towns. Id. That agreement, Applicants reasonably believed, was confirmed by Mass AG at a meeting held December 5, 1988, and Applicants acted in reliance on that belief. Smith Aff. at 1 6; Trout Aff. at 11 4-6. >

The best face that Mass AG could have put on his conduct would have been to argue that he and Applicants sincerely disagreed as to what was said at that December 5 meeting.2 Mass AG has not so contented. Instead, Mass AG charges that Applicants had no good faith basis for believing that an agreement existed. That charge simply is not.true. Smith Aff, at 11 5-6, 8-9; Trout Aff. at 11 6,8. Moreover, 2 Mass AG's argument, at page 10 of his Cross-Motion, that Applicants could not reasonably have expected to rely on an oral promise made by one of the chief law enforcement officers of the Commonwealth, is not worthy of a response.

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I Applicants told Mass AG, on February 17 and on March 3, that. j Applicants thought such an agreement existed. Trout Aff, at 1 10. Thus, again, Mass AG knew the charge is baseless.

f C. Whether the Protective Order Was Violated Mass AG claims that the Board and the Applicants expressly exempted him from complying with certain provisions of the protective order in these proceedings. Specifically, he poirts to a colloquy in which the Board and Applicants did I indeed agree that the secretaries and law clerks working under the " direct control" of Mass AG's attorneys on this case need not file Affidavits of Nondisclosure. Cross-Motion at 4-5.

Mass AG takes this accommodation by the Board and l

Applicants, and seeks to expand it enormously. Specifically, i he argues that telephone staff from another section of the Attorney General's office, who only " occasionally" work for i

other Mass AG lawyers, and who is this instance were Dol i directly supervised or controlled by the attorneys on this {

case, fall in the same category as the Nuclear safet'f Unit's secretaries who deal with it every day. Poitrast Aff. at 11 2-3, 8.

Worse, Mass AG argues that Applicants " knew or should have known" that the interpretation which Mass AG now assigns to this colloquy is correct. That argument, however, ignores the fact that Mass AG has repeatedly filed Affidavits of l

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Nondisclosure when he has employed investigators from outside f l

the Nuclear Safety Unit. See attached Affidavits of Non-Disclosure. At best, reasonable persons could disagree about the meaning of the " direct control" colloquy, and Mass AG sent misleading signals with his prior filings. Again Mass AG's charge of bad 'aith is baseless.

D. Whether Mass AG Needs Relief j Mass AG asserts that he "has refrained from further contacts with the individuals at issue upon receipt of this motion", and asks (yet again) to alter the scheduling order in this case to " remedy this lost time and opportunity."

Cross-Motion at 14. Applicants' notion, Mass AG claims, '

" froze the Mass AG's discovery effort in its tracks." Id. at

15. That charge, too, is demonstrably in error.

Applicants have done nothing to interfere in any way with Mass AG's legitimate discovery efforts. Both before and  !

after February 22, Mass AG was free to contact individuals at their place of employment. Applicants' motion clearly only addressed calls to people's homes. In case Mass AG missed that distinction, Applicants explained it again, on March 3.

Trout Aff. at 1 12. Moreover, Mass AG's own witness 1

testifies that Mass AG voluntarily ceased calling persons' homec on February 16, pursuant to Mass AG's own original plan. Poitrast Aff. at 15 8.

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If Mass AG's " discovery effort" has become " froze (n) l; . . . in its tracks," that is by Mass AG's own choice and i would not suffice to excuse delay.

l II. CONSEQUENCES OF MASS AG'S ERRONEOUS STATEMENTS Mass AG's Cross-Motion is premised on the legal theory that frivolous motions should oe sanctioned. This theory, j Applicants wholeheartedly embrace, and submit it should be followed by denying the Cross-Motion.3 CONCLUSION For the reasons stated above, Mass AG's Cross-Motion should be denied.

Respectfully submitted S? r

u/ kS//vv /wee i Ihdmas G. Dignan, Jr.

George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook Ropes & Gray One International Place Boston, MA 02110 (617) 951-7000 3 In the course of interviewing the recipients of Mass AG's harassing calls, Applicants were asked whether Mass AG could not be made to apologize for those calls. That seemed a very good idea -- that the Attorney General be required personally to draft and send (at their business ,

addresses) to each of the 65 people called a letter j apologizing for the call and promising not to call again. l

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However, such a sanction would more properly go to Mass AG's original misconduct, rather than his further frivolous Cross- l Motion, and so Applicants do not move for such relief at this (

time. ,

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