ML20238E515
| ML20238E515 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/03/1987 |
| From: | Hoyt H Atomic Safety and Licensing Board Panel |
| To: | HAMPTON, NH, PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| References | |
| CON-#387-4342 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8709150041 | |
| Download: ML20238E515 (8) | |
Text
-
- - ~
y2
%j51D UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
[
Helen F. Hoyt, Chairperson Dr. Jerry Harbour Gustave A. L'senberger, Jr.
SERVED SEP -81987
~
)
Docket Nos. 50-443-OL In the Matter of
)
50-444-OL
)
PUBLIC SERVICE COMPANY OF
)
(ASLBPNo. 82-471-02-OL)
NEW HAMPSHIRE, et al.
(Off-site Emergency Planning)
(Seabrook Station, Units 1 and 2)
September 3, 1987 MEMORANDUM AND ORDER (Rulino on Town of Hampton Motion to Compel Discove n) i On June 11, 1987 the Town of Hampton (T0H) filed a motion to compel discovery against Applicants, who responded by submittal dated June 22, 1987. The Board inadvertently delayed ruling on this matter.
In its " Motion to Compel Discovery" dated June 11, 1987 the Town of Hampton (TCH) moved this Board to compel discovery of Interrogatories
)
S-2, S-3, and S-7 from Applicants, served on the Applicants May 19, 1987. These interrogatories pertain to information relied upon by the Applicants in the Personnel Resource Assessment Sumary (Summary) of the i
New Hampshire Radiological Emergency Response Plan (NHRERP).
)
Interrogatory S-2 seeks identification of all persons that, according to the Sumary, are either employed by or have knowledge of the Town of Hampton and its distinctive personnel requirements and have 8709150041 B70903 PDR ADOCK 05000443 0
PDR p
h60
e.
h
.. ]
contributed such information to be used in the Sumary. With respect to 1
such persons identified T0H also requests discovery on specific dates of surveys, discussions, correspondence, and sundry other data regardless of whether such information his been incorporated into the Summary. Motion at 2.
In its " Answer to Motion to Compel of Town of Hampton" dated June
~
11,.1987, Applicants list five separate meetings and provide the location date of commu ication, the topic discussed, the name(s) of the person conducting the interview, and names of the contacts and their association with the Town of Hampton. At p. 2.
While several parts of the Applicants' answers are straightforward and unabiguous, other i
portions, according to T0H, either fail to answer the interrogatory
)
altogether or lack the specificity sought. At p. 4.
In particular, TOH would like to know precisely what information was given by Town j
1 officials and what portion may have been obtained but omitted from the j
Summary.
Id.
10 CFR 2.740(b)(1) sets forth NRC guidelines for discovery. Under l
the provision, a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved.
10 CFR
]
2.740(b)(1) generally parallels Rule 26(b)(4) and other provisions'of the Federal Rules of Civil Procedure upon which a number of licersing boards have relied in settling discovery disputes. Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility) and Kerr-McGee Chemical Corporation (Kress Creek Decontamination), LBP 85-38, 22 NRC 604 (1985).
i I
I iE__
.g.
l i.. _
I Under the Federal' Rules, discovery requests are liberally granted if relevant to a factual determination but are governed by a standard of
" reasonableness" with respect to the burden of the request on the other party. Fed. R. Civ.-Proc. 26(b)(1). This Board has previously explained that the fundamental purposes of ' discovery are to narrow the issues by determining the real factual disputes, safeguard surprise at trial,.and permit adequate preparation for trial. Memorandum and Order dated March 1, 1983, interpreting Statement of Policy on Conduct of LicensingProceedings,CLI-81-8,13NRC452,455(1981); pennsylvania Power and Light (Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-613, 12 NRC 317, 334 (1980), 4 Moore's Federal Practices 26.01[1]-[2](1982). The degree to which answer serves these purposes must be weighed against a claim that the answer is unduly burdensome.
From the outset it is important to note that the B' ard has chosen o
not to view the Personnel A3sessment Sumary as " work product" for the purposes of Rule 26(b)(3). We have taken this view because the Summary,
'(although it is part of a litigible emergency response plan), has characteristics of a "public. requirement" not given immunity under Rule 26(b)(3). See generally " Advisory Committee's Explanatory Statement Concerning Amendments of the Discovery Rules," 48 F.R.D. 487, 501 (1970).
In addition, Applicants have not argued that the Sumary be i
considered " privileged" under Rule 26.
1 In light of the foregoing considerations, the Board grants "T0H's q
Motion to Compel Discovery" for Interrogatories S-2 and S-3.
This I
- Y
- 4~-
concession, h' wever,. is conditioned 'upon whether Applicants' have y
o retained any " field notes" from interviews with TOH officials and.
whether TOH'can be more specific in.its requests so as not to place an' undue burden on the Applicants. The analysis which follows outlines the l
degree to which Applicants must reasonably ccmply with T0H's discovery requests for Interrogatories S-2 and S-3.
H TOH requests " specific" information'in the Summary provided by TOH officials and any other information that might have been omitted from the Sumary because, Movant asserts, the Town should not have to speculate about statements supposedly provided to the Applicants.
. Motion at 3.
This request is problematic, however, insofar as TOH itself has not specified which parts of the Summary contain statements supposedly provided to the Applicants but never disclosed to the Town's attorneys.
For example, TOH contends, "If Applicants maintain that the Town' of Hampton identified specific persons, departments, and/or.
q 7
resources regarding the RERP, the information should be specifically
)
provided to the Town." Motion at p. 3.
Granting such a request would be too great a burden for the Applicants under Rule 26(b)(1) because it might require the Applicants either to anticipate T0H's particular i
objections to information contained in the Summary or.to produce new documents altogether.
In responding to discovery requests a party is not required to engage in extensive independent research.
Hence, in order for Applicants to flush out what TOH characterizes as ambiguities or allusions to persons not specifically mentioned T0H must first
i.
a i
L _
identify' these gray areas for the Applicants. Then if possible Applicants will identify the particular reference.
TOH'also requests portions of information gathered from Town l
officials but omitted from the Summary.
Such information, if in fact it exists in the form of field notes taken and retained by the Applicants in the course of_ preparing the Summary, is discoverable if " relevant" to the subject matter of the proceedings.
" Advisory Committee's Explanatory Statement" supra at 500.
It is worth noting..however, that alternative means for securing the same information exist and, as a practical matter, might be more facile.I
. Interrogatory S-3 asks the Applicants to demonstrate their diligence in executing planning responsibilities and in identifying the tasks contemplated by each emergency function. Also sought is the method-by which assertedly available personne1'were identified for each municipality for the procedural walk. throughs as well as the documents used in answerilng these. questions.. Motion at 3.
The reasoning used above is equally applicable to the T0H discovery i
request for Interrogatory S-3.
If Applicants can produce notes, 1
1 Town officials who were mentioned in Applicants' answer for Interrogatory S-2 (include info) have not,been retained by l
Applicants and may be deposed by T0H in accordance with 10 CFR 2.740a(a). Some courts have denied discovery requests despite their relevancy to the subject matter when alternative methods for gathering the same information exist. Guilford National Bank v.
Southern Ry. 297 F.2d 921 (4th Cir. 1962).
-1
1,
1 H
k
_ s diagrams,akdothermaterialsonhowthe" walk-through"wasperformed,
' how the specific numbers of TOH ' personnel were couputed, and on q
alternative me'thods considered but not used in addition to the a
information giYen in its June 5 Answer to the Town's Supplemental Interrogatories., as well as d,ocuments used in the personnel resource c
assessment summary without having to develop new docurSnts, then TOH is entitled to such information.
4 Interrogatory S-7 asks the ApplicantsL to elaborate on the affidavit of Mr. rallendrello. Motiot) at p. 6.
Spdyfically, ins-7(b)TOHhants, to know how Mr. Callendrello computed the rumber of persons requiredght the Town of Hampton emergency Response Organization; in S-7(c) the names and employment positions of the persons avcilable to the Town to serve in an emergency response capacity, and the. specific capacity for each; s
and in S-7(f) all, conversations, correspondence, communications, or surve//, referenced a,t paragraph 15 of Mr. Callendrello' afff' davit, i<
s including those wib Town officials, and the dates the'reof and
.]
~
b substance. Motion at p. 6.
1 Applicants re-explained its answer to Interrogatory S-7(b) in a somewhat circular fashion:
the number required is based upon the number participating in Mr. Callendrello's " walk-through." Applicants' Answer at p. 5.
Thus, the Board agrees with T0H that supplementation of this answer is in order; answering this request should not be too burdensomc if the information is available and does not require additional testing j
h and documentation.
For example, what the bases are for why' the numbers decided upon by Mr. Callendrello satisfy the demands of the particular
{.
b
7
,,\\.y 4
(?
L. y Gf h4 7 7
g
, :c, L
" implementation procedure" conducted in the walk-through; under what y
y cond)tions the numbers might vary; the extent to which Mr..
- i N/g
' d Ca13adtrilo's estimates of the numbers required for each implementing e,, t v;
proradure'aere based on conjecture rather than on empirical data.
In s
/
s Tcherdgrds.,informationotherthantheactualnumberof. persons' relied upon for the walk-through that relates to the number arrived upon for the Emergency Response Organization.
1 Applicants also object to S-7(c) which seeks identification of tho:;e 70wn officials whn purportedly comprise the personnel pool to implement. the Hampton Interrogatory is beyond that required by pertinent regulations. Applicants' Answer at p. 5.
Likewise, the Board believes that the TCH request imposes a considerable burden on the interrogees.
v.
This burden is not justified in light of Applicants' response to Interrogatory S-2 which provides the names and positions of Town 7 J s
y officials Knowledgeable about the numbers of required and available personnel resources.
S-7(f) asks for all conversations, correspondence, communications or surveys, referenced at paragraph 15 of Mr. Callendrello's affidavit, includino those with Town officials. Motion to Compel at p. 6.
The answer given by the Applicants refers T0H to the information provided by J_d,.atp.
d Town officials mentioned in the answer to Interrogatory S-2.
7.
The limited discovery granted to 70H for Interrogatory S-2, supra, should'yiehl the same information sought in S-7(f), since, according to Applicants, paragraph 15 was based on the same information provided by Town officials mentioned in the response to S-2.
If, however.
/
j
(s.
[.,
9..
additional information substantiating paragraph 15 is extant, then such information should be made available to TOH.. Accordingly, discovery of Interrogatory-7isalsograntedwiththeexceptionofpart(c).
IT IS SO ORDERED FOR THE ATOMIC SAFETY AND LICENSING BQARD
/
/., '...
~.
/,[;
~
n
] k{ '
y Helen F. Hoyt, Chairperspy ADMINISTRATIVE JUDGE Dated at Bethesda, MD this 3rd day of September, 1987, i
-._-. ___ _ _ _ _.. _ _ _