ML19296B147

Answer in Opposition to Skagitonians Against Nuclear Power 800122 Motion to Compel Responses to Interrogatories.Motion Untimely & Questions Re Seismic Profile Outside Scope of Proceedings.Certificate of Svc Encl

ML19296B147
Person / Time
Site:	Skagit
Issue date:	02/01/1980
From:	Little D, Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PORTLAND GENERAL ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002200161
Download: ML19296B147 (8)

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UNITED STATES OF AMERICA x,,

NUCLEAR REGULATORY COMMISSION ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

)

(Skagit Nuclear Power Project, ) February 1, 1980 Units 1 and 2) )

APPLICANTS' ANSWER TO SCANP'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES REGARDING SAN JUAN ISLANDS SEISMIC PROFILES On October 30, 1979, intervenor SCANP served on Applicants a set of interrogatories regarding certain San Juan Islands seismic profiles.1 The stated purpose of these interrogatories is to determine when and by what means Applicants learned of the existence and content of the seismic profiles, and when and by what means Applicants provided these IO n the same date, SCANP served a similar set of inter-rogatories on the NRC Staff. On January 18, 1980, the Staff filed its objection to these interrogatories on the ground that "the information sought is not relevant to the subject matter involved in the proceeding nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence as required by 10 CFR S 2.740 (b) (1) ."

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profiles to the NRC Staff and the USGS. According to SCANP, this information is sought "in order to determine whether Applicant has made a material false statement, as that term is used in Section 186 of the Atomic Energy Act, 42 U.S.C.

S 2236." SCANP Interrogatories, p. 1.

On December 12, 1979, Applicants filed their objection to the SCANP interrogatories on the ground that they do not relate to any matter in controversy in this proceeding and thus are outside the scope of discovery permitted by 10 CFR 2.740 (b) (1) .

On January 22, 1980, at the conference before the Licensing Board, SCANP served on Applicants a motion to compel answers to the SCANP interrogatories. SCANP's motion to compel should be denied for the reasons set forth below.

First, SCANP's motion is untimely. The applicable regulation, 10 CFR 2.740 (f) (1) , requires that a motion to compel be made "within ten (10) days after the date of the response or after failure of a party to respond . . . ."

Applicants' response, i.e., their objection, to the SCANP interrogatories was served by mail on December 12, 1979. Thus, SCANP's motion to compel, to be t.mely, should have been served by December 27. 10 CFR 2.710; 10 days plus 5 days for service by mail equals 15 days total. Instead, SCANP withheld its motion for more than three weeks.past this deadline. No extension of time was requested. No attempt was made to excuse the untimeliness.2 SCANP's motion should be denied as untimely.

Second, SCANP's motion should be denied because the information sought does not relate to any matter in controversy in this proceeding nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence as required by 10 CFR 2.740 (b) (1) . In considering this ground for obj ec tion , it is important to distinguish between the seismic profiles referred to in the interrogatories, on the one hand, and the information actually sought by the interrogatories, on the other hand.

Obviously, the seismic profiles are relevant to this proceeding and, of course, they have been made available to,all interested parties, including SCANP. What SCANP now seeks to inquire into, however, is something quite different. Assuming a sort of prosecutorial role, SCANP seeks to determine when and by what means Applicants learned of the seismic profiles, when and by what means they furnished these profiles to the Staff and USGS, and whether Applicants have made a material false statement within the meaning of Section 186 of the Atomic Energy Act.

2The fact that Applicants' objection may have been un-timely, as suggested by SCANP, does not excuse the untimeliness of SCANP's motion to compel. Even if Applicants' objection were untimely, it would have triggered the due date for SCANP's Even SCANP does not contend that these questions relate to any matter in controversy in this proceeding or otherwise fall within the scope of discovery permitted by the Commission's regulations. SCANP Motion to Compel, pp. 1-2. Rather, based on circumstances that SCANP considers to be " curious", SCANP argues that Applicants should answer the interrogatories because this would be the " easiest and most conclusive way to lay to rest" the doubts SCANP has sought to foster. Id. If anything is " curious" here, it is this logic, by which SCANP is attempting to justify a fisning expedition quite beyond the scope of this licensing proceeding. Nevertheless, in a renewed attempt to satisfy SCANP's curiosity, we have no hesitation in stating again, as we did in Applicants' objection of December 12, 1979 and at the January 22, 1980 conference (transcript not yet available), that Puget Power did not know of the existence of the 1971 Western Geophysical seismic profiles prior to August 1979. Further, as we also stated at the January 22 conference, we have been assured by both Bechtel and Dr. Dobrin that neither of them knew of the existence of these profiles prior to August 1979.

motion. Alternatively, even if Applicants' objection were to be totally disregarded and the case dealt with as though Appli-cants had failed to respond at all, SCANP's motion would have been due ten days after the due date of Applicant's response.

10 CFR 2.740 (f) (1) . Even on this basis, SCANP's motion is untimely and should be denied.

The third reason why SCANP's motion should be denied is that the issue at which the SCANP interrogatories are aimed and which SCANP now seeks to inject into this proceeding, i.e., the question of whether Applicants have made a material false statement, is beyond the jurisdiction of the Licensing Board in this proceeding. Licensing boards "are delegates of the Commission and exercise only those powers which the Commission has given [them]." Public Service Company of Indiana, Inc.

(Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-316, 3 NRC 167, 170-171 (1976); Atomic Energy Act of 1954, as amended, S 191, 42 U.S.C. S 2241; 10 CFR 2.721(a). The scope of the power delegated to a licensing board in any given proceeding--the scope of the board's jurisdiction--is defined by the Commission's notice of hearing governing the proceeding. Id.

In this proceeding, the notice of hearing (including the amended notice) limits the jurisdiction of this Licensing Board to consideration of the environmental, site suitability, and radiological health and safety issues pertinent to the Skagit 3This point was also made by Staff counsel, Daniel T.

Swanson, at the January 22, 1980 conference. Mr. Swanson (with others) was counsel for the Staff in the North Anna case dis-cussed in SCANP's motion to compel. See, 2 NRC 498, 3 NRC 347, 349, 4 NRC 480, 481. Although we have not yet received the transcript of the Januar y 22 conference, we understand that Mr.

Swanson's statement appears at approximately page 15,200.

application.4 These issues do not include the question of whether Applicants have made a material false statement. Thus, SCANP is asking this Board to compel discovery on an issue that is beyond this Board's jurisdiction. Put another way, the Commission has not delegated to this Board the power to hear and decide--nor to compel discovery with respect to--rhe issue SCANP now seeks to inject into this proceeding.

For the foregoing reasons, SCANP's motion to compel must be denied.

DATED February 1, 1980.

Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WILLIAMS e

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By

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F. Theodore Thomsen a

By d d. .

G DodJlas S. Little Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 Of Counsel:

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

Washington, D. C. 20036 (202) 862-8400 ,

4S ee the original notice, published in the Federal Register December 20, 1974, 39 F.R. 44,065, and the amended notice, published March 1, 1976, 41 F.R. 8835.

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

)

PUGET SOUND POWER & LIGHT COMPANY,) DOCKET NOS.

et al. )

) 50-522 (Skagit Nuclear Power Project, ) 50-523 Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that the following:

APPLICANTS' ANSWER TO SCANP'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES REGARDINGt SAN JUAN ISLAND 3 SEISMIC PROFILES in the above-captioned proceeding have been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on February 1, 1980 with proper postage affixed for first class mail.

DATED: February 1, 1980 V[  %

st 0 N F. Theodore Thomsen Counsel for Puget Sound Power &

Light Company 1900 Washington Building Seattle, Washington 98101

'

• Date: February 1, 1980 Valentine B. Deale, Chairman Robert C. Schofield, Director Atomic Safety and Licensing Board Skagit County Planning Department 1001 Connecticut Avenue, N.W. 218 County Administration Building Washington, D. C. 20036 Mount Vernon, WA 98273 Dr. Frank F. Hooper, Member Richard M. Sandvik, Esq.

Chairman of Resource, Ecology, Assistant Attorney General Fisheries and Wildlife 500 Pacific Building University of Michigan 520 S.W. Yamhill School of Natural Resources Portland, OR 97204 Ann Arbor, MI 48109 Roger M. Leed, Esq.

Gustave A. Linenberger, Member Room 610 Atomic Safety and Licensing Board 1411 Fourth Avenue Building U.S. Nuclear Regulatory Commission Seattle, WA 98101 Washington, D. C. 20555 CFSP and FOB Alan S. Rosenthal, Chairman Eric Stachon Atomic Safety and Licensing 2345 S.E. Yamhill Appeal Board Portland, OR 97214 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Robert Lowenstein, Esq.

Lowenstein, Newman, Reis, Dr. John H. Buck, Member Axelrad & Toll Atomic Safety and Licensing 1025 Connecticut Avenue, N.W.

Appeal Board Washington, D. C. 20036 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Warren Hastings, Esq.

Associate Corporate Counsel Michael C. Farrar, Member Portland General Electric Company Atomic Safety and Licensing 121 S.W. Salmon Street Appeal Board Portland, OR 97204 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 James W. Durham Portland General Electric Company Docketing and Service Section 121 S.N. Salmon Street Office of the Secretary Portland, OR 97204 U.S. Nuclear Regulatory Commission s Washington, D. C. 20555 Richard D. Bach, Esq.

(original and 20 copies) Stoel, Rives, Boley, Fraser and Wyse Richard L. Black, Esq. 2300 Georgia Pacific Bldg.

Counsel for NRC Staff 900 S W. Fifth Avenue U.S. Nuclear Regulatory Commission Port and, OR 97204 Office of the Executive Legal Canadian Consulate Genera Director Donald Martens, Consul Washington, D. C. 20555 412 Plaza 600 6th and Stewart Street Nicholas D. Lewis, Chairman .S e a t t l e , WA 98101 Energy Facility Site Evaluation Council Patrick R. McMullen, Esq.

820 East Fifth Avenue Skagit County Prosecuting Attorney Olympia, WA 98504 Courthouse Annex Mount Vernon, WA 98273 Kevin M. Ryan, Esq. '

Assistant Attorney General Temple of Justice Olympia, WA 98504 12/6/79

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