ML20076B470

Motion for Extension Until 830831 to Answer Util Second & Third Sets of Interrogatories.Time Necessary Due to Extreme Length & Complexity of Interrogatories & Unavailability of Consultants.W/Certificate of Svc

ML20076B470
Person / Time
Site:	Diablo Canyon
Issue date:	08/11/1983
From:	Durbin S CALIFORNIA, STATE OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8308190370
Download: ML20076B470 (13)

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C DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '83 AUG 15 P12:30 BEFORETHEATOMICSAFETYANDLICENSINGAP{ CAL. BOARD

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In the Matter of )

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PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

(Diablo Canyon Nuclear Power ) 50-323 0.L.

Plant, Units 1 and 2) )

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MOTION FOR EXTENSION OF TINE TO ANSWER INTERROGATORIES INTRODUCTION Governor George Deukmejian hereby respectfully moves the Atomic Safety and Licensing Appeal Board for an order extending the time, pursuant to 10 C.F.R. 2.711 of the commission's Rules of Practice, for the Governor to answer Pacific Gas and Electric Company's ("PG&E") Second and Third Sets of Interrogatories. The extension sought is to August 31, 1983. The motion is made on the grounds that, due to the extreme length and complexity of the interrogatories and the scheduled and unalterable unavailability of the necessary consultants, it is impossible for the Governor to respond to the interrogatories within the fourteen-day period nominally provided in the rules.

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0308190370 830011 PDR ADOOM 05000275 O PDR

l NATURE OF THE INTERROGATORIES On July 27, 1983, PG&E served its Second Set of Interrogatories on Governor Deukmejian by express mail.

Absent an order granting relief, a response will be due August 12, 1983. (10 C.F.R. SS 2.740b(b), 2.710.) This set consists of 146 separate, detailed interrogatories. The interrogatories request the basis for each and every contention relating to design quality assurance submitted by the Governor to this board. The interrogatories call for highly detailed answers, listing each and every fact relied upon in making each contention, and every section, down to page and paragraph numbers, of every document relied on in making each contention. Obviously, answering these interrogatories in the requested detail will require a huge amount of time.

On August 4, 1981, PG&E served its Third Set of Interrogatories to Governor Deukmejian and Second Request For Production of Documents,1! again by express mail.

Absent an order of this board to the contrary, a response is due August 24, 1983. (Ibid.) This set contains only five interrogatories: the first asks for identification of all i

witnesses and detailed information about each -- a question already propounded as Interrogatory number 2 to PG&E's First

1. No request is made here for an extension of time to respond to the document production request.

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Set of Interrogatories to the GovernorE!; the second asks for identification of each exhibit intended for marking; the last three call for enumeration of each and every FSAR commitment not met and all evidence pertaining to each. In theory, the Governor could respond to the first two questions to the effect that witnesses and exhibits have not been decided upon. The remaining answers will require the assistance of consultants not presently available and the compilation of detailed information.

The Governor wishes to make it clear that he does not presently object to answering these interrogatories.

Obviously, the basis for making contentions must be revealed before the hearing, to avoid trial by surprise. (Houston Lighting and Power Company (South Texas Project, Units 1 and ,

2) LBP-80~11 (1980) 11 N.R.C. 477. The Governor asks only for additional time, based on good cause, as allowed by 10 C.F.R. 2.711(a).

GROUNDS FOR EXTENDING TIME TO ANSWER Pursuant to the commission's Rules of Practice, i

the board may extend the time for participants in a licensing proceding "for good cause." The nature of such

2. Actually, PG&E's first try only asked for each person "you intend to call as a witness." The second

, version asks for each person "you intend to or may call as a witness." No difference between the two is perceived that would not render the interrogatory objectionable, so the two i are being treated as equivalent.

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. " good cause" is not specified by the regulation, but is left to the discretion of the presiding officer.

As set forth in the attached declaration of Susan L. Durbin, the Governor has good cause for asking for an extension in that: (1) the interrogatories are extremely long and call for highly detailed answers; and (2) the consultants on whom counsel rely are unavailable.

Specifically, Mr. Richard Hubbard is currently in Europe on a vacation scheduled months ago. Mr. Hubbard left the contry on August 1, 1983, and will not return until August 15, 1983, after responses to the interrogatories are due.

Similarly, Dr. Jose Roesset, another consultant upon whom counsel rely, is cu*rently attending a professional seminar in Maine. He left for the meeting on August 2, 1983, and will not return until August 13, 1983, again af ter the responses are due.

These consultants are most familiar with the technical details of the bases for many of the Governor's design quality assurance contentions, as well as being most familiar with many of the precise portions of documents that support these contentions, and their help is indispensable to answering the interrogatories fully and completely. Both consultants' absences were scheduled long before service of the interrogatories, and could not be changed at that late date.

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Counsel for the Governor (Mr. Strumwasser) telephoned counsel for applicant (Mr. Norton), asking for agreement to the extension requested here. Counsel for applicant offered an extension to August 21 (in his hands) but declined on extension beyond that date because he said he wanted to have the answers available for the August 23 l prehearing conference. Because it was impossible to provide the answers by the new date requested, this motion is being l

made.

While PG&E may desire the answers to these 1

interrogatories in time to use them at the prehearing l conference, it has no such right. PG&E presumably seeks to attack some or all of the Governor's proffered contentions by reference to the answers to its interrogatories. But it is well established in this commission that a party is not required to provide its evidence in support of a tendered contention at this stage of the proceeding. (E.g.,

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2) ALAB-590 (1973) 6 AEC 423.) Once the parties have had an adequate opportunity for discovery, efforts may be made to dispose of contentions lacking evidentiary support by filing a motion for summary disposition. (10 C.F.R. S 2.749.) This prehearing conference was not convened to hear spontaneous oral motions for summary disposition.

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, The Governor emphasizes again that this motion does not seek to evade the responsibility for delineating the bases for contentions. All that is asked is sufficient time to respond properly. It is well established that this Board may make scheduling orders as needed to protect parties from undue burden. (Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2)

LBP-79-31 (1979) 10 N.R.C. 597, 604-605.) If a reasonable explanation for a delay is given, the presiding officer may grant deadline extensions if such is fair. (Offshore Power Systems (Floating Nuclear Power Plants) ALAB-489 (1978) 8 N.R.C. 194, 206.) Here, where the interrogatories are lengthy and complex, and they cannot be answered fully by the deadline, it is most fair to all parties that an extension be given.

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. CONCLUS'jN The Governor asks only a sufficient extension to reasonably answer the interrogatories, until August 31, 1983. In view of the presently contemplated schedules of the hearing on design quality assurance, this date should not deprive any party of rights to which it is entitled, and is the soonest date by which responses can possibly be prepared. The board is respectfully requested to issue such an order.

DATED: AUGUST 11, 1983 Respectfully submitted, JOHN K. VAN DE KAMP, Attorney General of the State of California ANDREA SHERIDAN ORDIN, Chief Assistant Attorney General MICHAEL J. STRUMNASSER, Special Counsel to the Attorney General PETER H. KAUFMAN, SUSAN L. DURBIN, Deputy Attorneys General By fd4DP_r J2 '

SUSAN L. DURBIN Attorneys for Governor George Deukmejian 3580 Wilahire Boulevard, Suite 800 Los Angeles, California 90010 i Telephone: (213) 736-2105 l

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LNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.

(Diablo Canyon Nuclear Power ) 50-323 0.L.

Plant, Units 1 and 2) )

)

DECLARATION OF SUSAN L. DURBIN The undersigned says and declares as follows:

1. My name is Susan L. Durbin; my business address is 3580 Wilshire Boulevard, Suite 800, Los Angeles, California 90010. I am a duly appointed Deputy Attorney General, am one of the attorneys representing Governor Deukmejian in this case, and am authorized to make this declaration.

2. I am informed and believe that Richard Hubbard, a consultant to counsel in this case, is currently on vacation in Italy with his family. I am informed by his office that Mr. Hubbard left on this vacation on August 1, 1983, and will return on August 15, 1983.

3. I am informed and believe that Dr. Jose Roesset, a consultant to counsel in this case, is currently attending a professional seminar in Maine. I was informed by Dr. Roesset that he would be leaving on August 2, 1983, and returning to his home on August 13, 1983.

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4. Messrs. Hubbard and Roesset, as consultants to counsel in this case, are most familiar with many of the facts and documents needed to fully answer the interrogatories in question here.

5. Work has already commenced on preparation of answers. After consideration of the time required to confer with consultants, perform necessary data gathering and document searching, and obtain clerical processing of the answers to the 151 interrogatories, the work cannot be completed prior to August 31, 1983.

I declare under penalty of perjury that the foregoing is true and correct except as to matters stated on information and belief and as to those matters, I believe them to be true.

Executed this llth day of August, 1983, at Los Angeles, California.

GW hb' SUSAN L. DURBIN Declarant 2.

l Hon. James Asselstine, Commissioner U.S. Nuclear Regulatory Commission 1717 H Stree t, N.W.

Washing ton, D.C. 20555 Hon. John Ahearne, Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washing ton, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Hon. Thomas S. Moore, Chairman

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Hon. W. Reed Johnson

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Con. mission Washington, D.C. 20555 Hon. John H. Buck

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Judge John F. Wolf, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Judge Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Judge Jerry R. Kline Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Harold Denton Director of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1

Leonard Bickwit, Esq.

Office of the General Counsal U.S. Nuclear Regulatory Counmission Washington, D.C. 20555 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that on this date I caused copies of the foregoing MOTION OF FOR EXTENSION OF TIME TO ANSWER INTERROGATORIES served on the following by U.S. Mail, first class (except for those persons marked with an asterisk ("*"),

to whom the envelope was posted Express Mail), postage prepaid.

Hon. Nunzio Palladino, Chairman U.S. Nuclear Regulatory Commission 1717 H S tree t, N.W.

Washing ton, D.C. 20555 Hon. Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washing ton, D.C. 20555 Hon. Thomas Roberts, Commissioner U.S. Nuclear Regulatory Commission 1717 H S tree t, N.W.

Washing ton, D.C. 20555 l

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l Lawrence Chandler, Esq.

• Henry J. McGurren, Esq.

Office of Executive Legal Director BETII 042 U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Secre tary U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Atten tion: Docketing and Service Section Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, CA 93401 Janice E. Kerr, Esq.

Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Confe rence, Inc.

4623 More Mesa Drive Santa Barbara, CA 93105 Gordon Silver Sandra A. Silver 1760 Alisal Street San Luis Obispo, CA 93401 Joel R. Reynolds, Esq.

Eric Havian, Esq.

John Phillips, Esq.

Center for Law in the Public Interest 10951 West Pico Boulevard, Third Floor Los Angeles, CA 90064 B ruce Nor ton, Esq.

• Norton, Burke, Berry & French 2002 East Osborn Phoenix, AZ 83064 Philip A. Crane, Jr. , Esq.

• Richard F. Locke, Esq.

Pacific Gas and Electric Company San Francisco, CA 94120 3.

, David S. Fleischaker, Esq.

. P. O. Box 117 8 Oklahoma City, OK 73101 Arthur C. Gehr, Esq.

Snell & Wilmer 3100 Valley Bank Center e nix, AZ 85073 Pho' Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose, CA 95125 Mr. Carl Neiberger Telegram Tribune P. O. Box 112 San Luis Obispo, CA 93402 Virginia and Gordon Bruno Pecho Ranch P.O. Box 6289 Los Osos, CA 93402 Nancy Culver 192 Luneta San Luis Obispo, CA 93401 Maurice Axelrad, Esq.

• Lowenstein, Newman, Reis, & Axelrad 1025 Connecticut Avenue, N.W.

Washing ton, D.C. 20036 DATED: August 11, 1983 JOHN K. VAN DE KAMP, Attorney General of the State of California ANDREA SHERIDAN ORDIN, Chief Assistant Attorney General MICHAEL J. STRUMWASSER, Special Counsel to the Attorney General SUSAN L. DURBIN, PETER H. KAUFMAN, Deputy Attorneys General By bh -44 h '

SUSAN L. DURBIN  !

Attorneys for Governor George Deukmejian 3580 Wilshire Boulevard Suite 800 1 l Los Angeles, California 90010 l

(213) 736-2105 i 1

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