ML20154P973

Applicant Motion to Compel Answers to Interrogatories & Production of Documents by Seacost Anti-Pollution League.* Answers to Interrogatories 2 & 6(a) Should Be Compelled by Board.Certificate of Svc Encl

ML20154P973
Person / Time
Site:	Seabrook
Issue date:	09/27/1988
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7167 OL, NUDOCS 8810030254
Download: ML20154P973 (10)

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['CLKETED thNiic September 27, 1988

'88 59 28 P6:01 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

[ f.d before the f-ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of

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Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY OF

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50-444-OL I

NEW HAMPSHIRE, et al.

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Off-site Emergency

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Planning Issues (Seabrook Station, Units 1 and 2)

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APPLICANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND i

t PRODUCTION OF DOCUMENTS BY SAPL_

Pursuant to 10 C.F.R.

$ 2.740(f), Applicants hereby move that the Seacoast Anti-Pollution League ("SAPL") be compelled to answer certain interrogatories and produce certain 1

documents requested of it in Applicants' First Set of

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Interrogatories and First Request For Production of Documents l

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to All Parties and Participating Local Government Regarding j

Contentions on the Seabrook Plan for Massachusetts Communities (August 31, 1988) (hereinafter dSPMC Interrogatories").

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Applicants filed their SPMC Interrogatories on August 31, 1988.

On September 12, 1988, SAPL filed its interrogatory answers and a motion for a protective order.

As discussed in detail below, SAPL's responses to several of the interrogatories were incomplete and/or evasive.

Full responses should be compelled, a.

T.nterrocatory 2 Interrogatory 2 and its response road as follows:

"2.

Pleare identify and produce all documents, and describe in detail all conversations not otherwise reflected in such documents, which reflect or refer to what actions any Massachusetts state or local government entity or official would, could, might, would not, could not, or might not take in the event of an actual radiological omergency at Seabrook Station."

RESPONSE

"2)

SAPL is in possession of no documents responsive to this interrogatory.

The conversations SAPL has had relative to the subject matters described in this interrogatory have been with counsel to the various parties ta this proceeding and are, therefore, deemed privileged, conversations with town officials have been in the presence of their counsel and are also deemed privileged.

The Only other conversations outside of the above-described have been with Bill Lord, Chairman of the Board of Selectmen of the Town of Amesbury.

Those conversations have generally been in the nature of poking fun at the idea that utility workers could adequately perform functior.<,

required in a local community emergency response and have revolved around the basic theme that the SPMC is not going to work to adequately protect the Town of Amesbury's citizens."

SAPL's response to Interrogatory 2 is evasive and incomplete.

That Mr. Lord and SAPL find humor in Applicants' t

I attempt to compensate for the refusal of the Town of Amesbury to protect the health and safety of its own citizens is not responsive -- the question went to what the Town of Amesbury

("TOA") and the other towns would do, not what SAPL and TOA think of Applicants' efforts.

SAPL's only objection to responding to the question actually posed was one of privilega.1 That objection, however, is defective, for several reasons.

Firste it is wholly unsubstantiated.

SAPL failed to identify and list the assertedly privileged material, as requested in Applicants' 3

Instruction 5.

Thus there is no way to evaluate the legitimacy of SAPL's claim of privilege, and therefore no reason to give it any credence.

Second, SAPL's assertion that its conversations with persons possessing probative evidence are privileged simply 3

1 In particular, SAPL waived any objection as to relevance or scope -- and with good reason.

At least six of the contentions bei.g litigated before this Board consist of assertions by Intervenors as to what various state and local officio 1s would or would not, could or could not, or might or might not do in the event of a radiological emergency at Seabrook Station.

EAR Joint Intervenor Contentions 22 j

(state / local officials will always reject Applicants' PARS, and the officials' own ad hoc PARS will be inadequate); 24 (delays in briefing state of ficials); 44A (unlawful to delegate authority to implement SPMC) ; 61 (responses by state / local officials under Mode 1 of SPMC); 62 (lack of preparedness of state / local officials); 63 (inadequate state / local facilities and equipment).

Given the breadth and variety of these assertions by Intervenors, Interrogatory 2 is no more broad or general than is necessary to reach all the documents and conversations which would tend to prove or disprove the truth of those various assertions, a

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because those persons were accompanied by counsel is wrong as a matter of law.

The presence of counsel as a third party to a conversation conveys no privilege.

Hodaes, Grant & Kaufman

v. IRS, 768 F.2d 719 (5th Cir. 1985) ; Johnson v. United States, 542 F.2d 941 ( 5th Cir. 197 6), cert. denied, 430 U.S. 934 (1977).

Finally, to the extent that SAPL's claim of privilege is based upon work product, SAPL has failed to carry its burden of establishing the existence of the privilege.

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Service Comoany of New Hamoshire (Seabrook Station, Units 1 i

and 2), LBP-83-17, 17 NRC 490, 495 (1983).

Moreover, even if SAPL had carried its burden, Applicants could nonetheless show that Applicants' substantial need for the information overrides the privilege.

10 C.F.R. I 2.740(b) (2).

Only the various Massachusetts state and local governments know what their capabilities, limitations, and intentions are.

Accordingly, Applicants would suffer "undue hardship", within the meaning of 10 C.F.R. 5 2.740(b) (2), if SAPL were allowed

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to withhold its evidence relevant to the six contentions discussed above.

In sum, Interrogatory 2 calls for identification of documents and conversations directly relevant to the six P

contentions that deal with what state and local officials could or would do in an actual emergency at Seabrook Station.

SAPL has shown no privilege that applies, whereas Applicants f

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have shown a substantial need for the material.

According, the Board should order that all responsive conversations be listed and described.

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Interroaatorv 6 Interrogatory 6 and its response read as follows:

"6.

For every admitted SPMC contention that you submitted and do not hereby withdraw, and for every other admitted SPMC contention that you did not list in response to Interrogatory 5 above, individually foc each such contention pleases (a)

State in detail all the facts underlying each assertion contained in the contention; (b)

State the source of each such fact.

If the source is the personal knowledge of one or more persons, identify the person (s).

If the source is one or more documents, identify and produce the document (s) ;

(c)

Identify any expert witness who is to testify concerning the contention, and state the substanco of the facts, opinions, and grounds for opinions to which the expert is expected to testify; (d)

Identify any non-expert witness who is to testify concerning the contention, and state the substance of the facts to which the witness is expected to testify; and (e)

Identify and produce any documents which reflect or refer to any type of study, calculation or analysis bearing upon the substance of the contencion."

RESPONSE

"6)

(a)

Insofar as SAPL knows, the facts ur derlying the assertions in these contentions a'te set forth in the bases of the contentions.

(b)

SAFL can speak with any knowledge only to the sources of the facts in the contentions SAPL drafted.

Those facts were all drawn from information contained in the SPMC except for 5_

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additional facts in SAPL Contention No. 2 which were learnsd from Ashod N. Amirian, Esquire, the Assistant City Solicitor for the city of Haverhill, 376 Main Street, Haverhill, MA 01830.

(c)

No expert witnesses have yet been chosen.

(d)

No non-expert witnesses have yet been chosen.

(e)

SAPL has no documents and no calculations apart from those in the contention bases."

SAPL made no objection to Interrogatory 6, which asked

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SAPL to state the facts underlying the assertions contained in the contentions that it intends to litigate.

Having made no objection, however, SAPL should have answered fully.

SAPL's response, that "the facts underlying the assertions contained in these contentions are set forth in the bases of the contentions", is evasive, for several reasons.

First, Applicants carefully defined the term "contention", for the purposes of these interrogatories, to include the bases and sub-bases as well as the contentions themselves.

SAPL's answer is thus circular.

Second, the contentions and bases contain assertions, not facts.

The Intervenors (including SAPL) assert, for example, that Applicants have not identified all special l

facilities in the EPZ.

Egg Joint Intervenor Contention 50, formerly MAG Contention 54.

The facts underlying that assertion would be all the facilities known to SAPL that Applicants have not identified.

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CONCLUSION For the reasons stated above, answers to Interrogatories 2, and 6(a) should be compelled by the Board.

l By their attorneys,

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r Thomas G.

Dignan, Jr.

Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith i

Ropes & Gray 225 Franklin Street Boston, MA 02110 (617)423-6100 i

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.gg gy 28 P 6 :01 CERTIFICATE OF SERVICE I, Jeffrey P. Trout, one of the attorneys for the..

Applicants herein, hereby certify that on September $))i1988,

>!U I made service of the within document by depositing copies'M~

thereof uith Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class pontage paid, addressed to):

Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlanti'. Avenue Commission North Hampton, NH 03860 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustavo A.

Linenberger Diane Curran, Esquire Atomic Safety and Lice.nsing 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 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 03J01-6397 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 Fl.

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

t Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road 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 F1.

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 Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attnt Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:

Herb Boynton)

Newburyport, MA 01950 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 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 Mr. Richard R. Donovan Judith H. Mizner, Esquire 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 Leonard Kopelman, Esquire 376 Main Street Kopelman & Paige, P.C.

Haverhill, MA 01830 77 Franklin Street Boston, MA 02110 Robert R. Pierce, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814

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