ML20206N037

Applicant Answer in Opposition to Commonwealth of Ma Atty General Motion to Compel Answers to Interrogatories.* Motion Should Be Denied.Certificate of Svc Encl

ML20206N037
Person / Time
Site:	Seabrook
Issue date:	11/21/1988
From:	James Smith PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7573 OL, NUDOCS 8812020156
Download: ML20206N037 (11)

Text

,7573 c.

l'CCKE T ED UihkC UNITED STATES OF AMERICA

• E8 im 28 P132 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

c.

Before the Administrative Judges:

Ivan W. Smith, Chairman j

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, ET AL.

)

)

(Seabrook Station, Units 1 and 2)

)

Novomber 21, 1988

)

APPLICANT'S ANSWER IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES Attorney General for tna Commonwealth of Massachusetts

("Mass AGH) moved that the Board order Applicants to provide answers or further answers 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 drivere employed by road cre'w 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 l

the drivers but object to supplying the drivers' residential l

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addresses and phone numbers for the reason that these drivers have signif cant interests in keeping this information private, including avoiding harassment from persons onposed to thu licensing of seabrook Station.

Massachusetts and New Hampshirc courts recognize an employee's right to keep confidential "facts that are of a highly personal or intimate nature," gag Bratt v. International Business Machines Coro.,

392 Mass. 508 (1984); M.G.L. c. 214 5 1B, and "information necessary to an individua) 's privacy," ama Mans 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, Mass AG moves to compel Applicants to diccioso the city or town and state where etch 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.

Interrocatorv 6(a) requests that Applicants state the names, home and work addresses, and phone numbers of each of the New Hampshire Yankee Offsite Response Organization's

("NHY ORO") Traffic Guides.

Applicants have provided Mass AG with a coupater printout containing the names and work addresses of the Traffic Guides, but Applicants object to....

providing the Guides' residential addresses and phone numbers i

for the same reasons of individual privacy that 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 Guide lives under an appropr ste protective order or agreement.

Interroaatory 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 than that at 145 Water Street in Haverhill, Massachusetts.

Interroaatories 29 and 30 ask Applicants to identify all individuals either presently or formerly employed by or on behalf of the NHY ORO as instructors and who have ar had 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.

gan Iris Durell v. City of Dover, 546 A.2d 1072 (N.H. 1938) (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).

l Just as employees have a legitimate interest in maintaining the privacy of their personnel files, gag Mans v. Lgbanon i

l I

School Board, 112 N.H.

160; 290 A.2d 866, 867 (1972), so terminated employens should be entitled to have their names kopt confiaential.

Employees in the private sector have an "enormous stake in the kinds of records maintained by their own enployers, which can include.

transfer, promotion, demotion, training, discipline, benefits and termination records."

Arzt, Privacy Law in Massachusetts _ Territorial, Informational and Decisional Richts, 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 I,

~

have a strong interest in maintaining the privac'1 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, therefore, stand by their objection but state that they 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 authoritation of the individual involved.

Interroaatorv 55 refers to a statement mado by a past i

president of Public Service Company of New Hampshire 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 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 confidance and morale may have been jeopardized.

Applicants objteted 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 Seabrook Station has sufficient staff to l

maintain an emergency response.

The postulated connection between poor morale and staffing problems, however, is

! l l

l baseless.

The number of ORO workers is ascertainably sufficient to maintain an emergency response.

A continuing recruiting program is maintained to replace workers who leave for any reason.

l' ass 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 because of the financial condition of the entity for which tney 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 nL 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 argumento to be "internally inconsistent," the Board concluded that Mass AG's allegations about the c.ffects of

, 1

human behavior were "incapable of being proved or disproved in this adjudication."

Id. at 106.

Since this interrogatory seeks information about lorkers' attitudes that is irrelevant to the admitted contentions and since it appears to be advancqd on the basis of unlitigable speculation, Applicants request that the Board enter an order denying such discovery.

Interrocatory 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 concerning "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 admitted by the Board.

ORO staff are trained to carry out ineir duties in an eLorgency.

Interrogatory 56(') is objectionable because it o

suggests that npacia'l training is necessary to react tc a huge range of behavioral problems, the extent and effect of which are largely unforeseeable. - - - _ _

i e

I 1

i 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.

Egg Memorandum and order of the Board, 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, 30, 55, and 56(b),

should be denied.

By their attorneys, Auf

^

Thomds G.

Digylan, 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 l r

"..,L, i p

/

, CERTIFICATE OF SERVICE vu /

I, Jay Bradford Smith, one of the attorneys for.the,

Applicants herein, hereby certify that on November 21, 1988, ' " TL I mads serv.lco of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, j

where indicated, by depositing in the United States mail, J

first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Robert Carrigg, Chairme.n Chairman, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Betheuda, MD 20814 Judge Gustave A. Linenberger Diano Curran, Esquire Atomic Safety and Licensing Andrea C.

Ferster, Esquire Board Panel Harmon & Weiss U.S.

Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

East West Towers Building Washington, DC

~:0009 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 Eact West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)

U.S.

Nuclear Regulatory 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

)

Philip Ahrens, Esquire Mr.

J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central P.oad 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 25 Maplewood Avenue General P.O.

Box 360 One Ashburton Place, 19th Fl.

Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Routa 107 126 Daniel Screet Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey R.

Scott Hill-Whilton, Esquire U.S.

Senate Lagoulia, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn:

Tom Burack) 79 State Street Newburyport, MA 01950 l

• 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 - Frier.d Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire 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 -

Judith H. Mizner, Esquire Mr. Richard R.

Donovan Federal Emergency Management 79 State Street, 2nd Floor Agency Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W.

Bothell, Washington 98021-9796 Ashod N. Amirian, Esquire 376 Main Street Haverhill, MA 01830 Robert R.

Pierce, Esquire John H. Fryn, III, Alternate Atomic Safety and Licensing Chairman Atomic Safety and Licansing Board Panel 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. Carpentor, 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 hA

• Y H

Jay BYadford Gmith

(*=0rdinary U.S. First Class Mail)

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