ML20196A958
| ML20196A958 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 06/16/1999 |
| From: | Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20196A963 | List: |
| References | |
| CON-#299-20551 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9906230047 | |
| Download: ML20196A958 (23) | |
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UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION
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OFF Before the Atomic Safety and Licensing Board g3 In the Matter of
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PRIVATE FUEL STORAGE L.L.C.
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Docket No. 72 15 FSI
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(Private Fuel Storage Facility)
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ASLBP No. 97-732-02-ISFSI 4
APPLICANT'S RESPONSE TO OGD'S MOTION TO COMPEL APPLICANT TO ANSWER INTERROGATORIES AND PRODUCE DOCUMENTS Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") files this response 3
to "Intervenor Ohngo Gaudedah Devia's Motion to Compel Answers to Interrogatories and to Produce Documents Directed to the Applicant,"(" Motion"). OGD served PFS with a single set of discovery requests on May 10,1999,' to which PFS filed responses and objections on May 20,1999.2 On May 27,1999 OGD filed the subject Motion with-out consulting with PFS before hand as required by Board Order.3 PFS advised OGD of this omission and OGD requested the Board to withhold action on the Motion until it had a chance to discuss its Motion with PFS.* Following discussions with PFS, OGD filed a
' OGD's First Set of Discovery Requests Directed to the Applicant (May 10,1999).
2 Applicant's Objections and Responses to OGD's First Requests for Discovery (May 20,1999)("PFS's Objections).
Private Fuel Storage L.L,C_. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,245 8
(1998). OGD also failed to comply with the Board's 10-page limit on motions. OGD filed its 15-page motion without prior approval of the Board, or consultation with PFS, to exceed the Board's 10-page limit.
OGD attempted to request an extension to the Board's 10-page limit through a footnote in its filing, s_ee e
Motion at I n.1, thus failing to comply with the Board's requirement that any request to exceed the page l
limits be filed at least three days prior to the filing and aller consultation with other parties.
- OGD's Motion to Hold in Abeyance (June 2.1999).
i 9906230047 990616 PDR ADOCK 07200022 C
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letter with the Board identifying those issues raised in its Motion on which the parties
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I were able to reach agreement and which no longer require Board action.5 j
OGD requests the Board to compel PFS to answer the remaining requests to which PFS has objected to as being beyond the scope of OGD's contention, as admitted by the Board.' OGD argues in its Motion, among other things, that PFS's claims that the requests are beyond the scope ofits contention are " glibly" made. Motion at 11. How-I I
ever, as discussed below, it is OOD that is impermissibly seeking to expand the scope of 1
its contention and circumvent the clear limitations established by the Board in its admis-sion of OGD O. Accordingly, OGD's Motion lacks merit and must be denied.
A.
OGD O is Limited to Alleged Disparate Impact Caused by the PFS Facility
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i Pursuant to 10 C.F.R. Q 2.740(b)(1), discovery is allowed into "any matter, not privileged, which is relevant to the subject matter involved in the proceeding." 10 C.F.R.
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Q 2.740(b)(1). The information sought must be, as a minimum," reasonably calculated" to lead to the discovery of admissible evidence. Id. (emphasis added). The scope of dis-covery is not, however, infimite, and it is well established that "the NRC Rules of Practice limit discovery to the boundaries of admitted contentions."7 These boundaries are de-fined by "the scope of a contention [which) is determined by the ' literal terms' of the l
5 OGD Letter to Board Re: Portions of Motion No Longer Requiring Board Action (June 9,1999). The is-sues withdrawn by OGD from its Motion concern Applicant's first and second general objection, OGD's Interrogatory No. 3 and Document Request No. 3, and OGD' request for PFS to refile its responses under i
cath from a PFS corporate official.
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' Also, OGD refuses to sign a confidentiality agreement substantially identical to that which the State has executed and requests the Board to require PFS to make available - without protection - the confidential l
portions of its lease with the Skull Valley Band. As discussed infra. OGD's request is devoid of any merit.
' Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-25,28 NRC
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394,396 (1988).
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. contention, coupled with its stated bases."8 As stated in PFS's Objections, OGD's dis-l i
covery requests are not relevant to its sole contention, OGD 0, because they are beyond the literal terms of OGD 0 as admitted by the Board and are not reasonably calculated to j
lead to the discovery of admissible evidence.
In admitting contention OGD 0, the Board expressly limited the contention "to q
the disparate impact matters outlined in bases one, five, and six." LBP-98-7,47 NRC at 233. The three specific bases admitted by the Board contest PFS's assessment ofimpacts
- of the on tl e surrounding Native American community. Basis One alleges that the pro-posed Private Fuel Storage Facility ("PFSF")"will have negative economic and socio-I logical impacts on the Native community of Goshute Indians" in Skull Valley.' Basis j
Five alleges that "PFS in its license application has failed to consider any of the (cumula-tive and] disproportionate impacts that may be suffered by the members of the Goshute Tribe" from the PFSF and other hazardous waste facilities in the vicinity, enumerated in Basis Five. & at 34. Basis Six alleges that "[t]he ER, fails to address the effect that the facility will have on the [value of] property that is owned by members of OGD or by people living in and around the area of the proposed ISFSI site." & at 34-35. Thus, the three bases of OGD O admitted by the Board are limited to (as stated specifically by the Board with respect to Basis Six)"the effects of the PFS facility on... the Skull Valley Goshute community." LBP-98-7,47 NRC at 233 (emphasis added).
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- Id. (citing Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB-899,28 NRC l;
93,97(l988)).
- OGD's Contentions Regarding the Materials License Application of Private Fuel Storage in an Independ-ent Spent Fuel Storage Installation at 28 (Nov. 24,1997)("OGD's Contentions").
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l As set forth below, the disputed discovery goes beyond the limited bounds of OGD 0 as admitted by the Board. Thus, OGD's Motion to compel must be dismissed.'"
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OGD's Requests Are Beyond the Scope OGD O or Otherwise Lack Merit OGD's Motion generally fails on two fundamental errors. First, OGD fails to link its requests to the text ofits lone contention in this proceeding - OGD 0 - which is lim-ited to the issue of" disparate impacts" as discussed above. Indeed, OOD requests gen-eral information 'on PFS and its member utilities solely on the basis that PFS is "the sub-ject matter of this litigation," with no attempt whatsoever to establish a link to OGD O.
See Motion at 7,11. Second, OGD fails to show how any ofits objectionable requests are " reasonably calculated" to lead to admissible evidence 'as required by 10 C.F.R. {
2.740(b)(1). In fact, OGD fails to address this standard and relies wholly instead on broad unsupported assertions that the requested discovery "could assist OGD in evaluat-ing the impacts,""could lead to information regarding the safety and impacts,""may as-sist OGD in learning more," and similar such generalized assertions. Motion at 8 and 14.
Such broad unsupported assertions are an insufficient basis to compel discovery."
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. In interrogatory No. 4, OOD requests PFS to provide detailed information con-j cerning "each person, organization, and/or entity that has a substantial interest in PFS" so that OGD can " fully understand who controls and makes decisions for PFS." Motion at
" The Board has recently affirmed that OGD's discovery is limited to obtaining information relevant OGD O. See Memorandum Ruling on Motions to Extend Discovery and to Quash Deposition (June 14,1999).
" See, e.g., Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13,5 1
NRC 489,492 (1977)((" practical consideration [s] dictate that the parties should not be permitted to roam i.
in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory l
that it might conceivably become so.")(quoting Broadway & Ninety-Sixth St. Realty Co. v. Loew's Inc.,
2I F.R.D. 347,352 (S.D.N.Y.1958))).,
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- 7. OGD argues that this request "is entirely relevant" because "the subject matter of this litigation is about PFS and its application to license a dangerous facility." & However, 1
LOGD makes no attempt whatsoever to demonstrate how information on "who controls and makes decisions for PFS" relates to alleged disparate impacts caused by the PFSF, or how the request is " reasonably calculated" to lead to admissible evidence concerning such impacts. Thus, as to this request, OGD's Motion must be denied.
In Interrogatory No. 5, OGD requests detailed information concerning "each nu-clear power facility that may provide waste to be stored at the proposed PFS facility," in-cluding " whether the facility currently stores and/or has room to store the type of wastes planned for storage at the proposed [PFSF]." & at 8. This request relates directly to Ba-sis Four of OGD 0, regarding at-reactor spent fuel storage capacity, which the Board re-iected.i2 The Board should not allow OOD to slip through the back door that which the Board has previously barred at the front. OGD argues that "[w]hether these facilities presently have spent fuel storage capacity... may allow OGD to seek further informa-tion conceming the impacts from storage on those communities," and that this "could as-sist OGD in evaluating the impacts its community may suffer if the PFS facility is li-censed and the disproportionate nature of those impacts." & Clearly, this argument is a post-hoc rationalization for the request itself makes no reference to impacts of spent fuel storage. Moreover, even assuming some tenuous relevance, the request falls in the
" shadow zones of relevancy," see note 11, supra, and does not meet the requirement that 1
i2 LBP-98 7,47 NRC at 233. Basis Four challenged PFS's assertions in the ER that the " unavailability of added storage has become a significant risk" that could "cause the shutdown" of reactors. OGD Conten-i-
tions at 31.,
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discovery be " reasonably calculated" to lead to' admissible evidence. Indeed, OGD makes no such claims, much less provide support for such a claim.'3 Similarly, OGD's claim that Interrogatory 5 is "also relevant" because it "may lead to the discovery ofinformation" concerning: (1) why certain utilities have made dif-ferent choices for spent fuel storage, (2) whether utilities considered safety and health is-sues, and (3) whether utilities considered environmental issues, Motion at 8-9, is likewise without merit. OGD makes no showing - even assuming such information were forth-coming in subsequent discovery - that the information is relevant or would be admissible i
concerning alleged disparate impacts of the PFSF on the Goshute community.
Finally, OGD's claim that this interrogatory is relevant to " mitigation strategies
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and attention to alternatives," id. at 9, is likewise misplaced. Alternatives are beyond the scope of OGD 0 as admitted by the Board, focused as it is on asserted disparate impacts
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of the PFSF on the Skull Valley Goshute community, and OGD fails to show how the in-formation requested would in any way relate to or provide admissible evidence concern-ing mitigation strategies. Simply put, for all its new explanations, OGD has failed to demonstrate that Interrogatory No. 5 is within the scope of OGD 0 conceming alleged disparate impacts caused by the PFSF or reasonably calculated to lead to admissible evi-dence of such. Thus, OGD's Motion must be denied as to this request.
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in Document Request No. 4, OGD requests detailed information concerning the j
formation and operation of both PFS and " companies involved in the formation and/or operation of PFS," including annual reports, business licenses and permits, public utility
" OGD's bald assenions that such infonnation "may allow" or"could assist" OGD in cenain respects cer-tainly do not provide such a showing.
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E commission filings, and Securities and Exchange Commission filings. Motion at 10.
OOD makes n_o attempt to show how such ~ corporate financial information is related to l
l alleged disparate impacts of the PFSF on the Skull Valley Goshute community, but sim-l ply asserts that such information "is relevant to the basic subject matter of the litigation,"
i which OGD claims is "PFS and the persons or organizations that control PFS." E at 10-i
- 11. This bald request must be rejected, even if such information is ofinterest to OGD, 1
for it is clearly outside the scope of OGD O and not subject to discovery by OGD here.
i OGD's arguments conceming Document Request No. 5, which requests "all anti-i l
cles ofincorporation, by-laws, and partnership agreements that pertain to the PFS l
L.L.C.," & at i 1, are similarly deficient. Again, rather than explaining how this infor-mation is within the scope of the disparate impacts asserted in OGD 0, OOD attempts to i
justify its request solely on the basis that "PFS is the subject of this litigation" and that the information requested is just " basic foundational information."" & The subject of "this litigation" for OGD, however, is not "PFS," but rather OGD O as admitted by the i
Board. Because OGD makes no attempt to show how information of PFS's corporate i
structure is related to OOD O, the Motion must be denied with respect to this request.
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In Document Request No. 7, OGD requests information concerning PFS's lease L
agreement with the Skull Valley Band of Goshutes ("the Band"), as well as any related l
l payments of funds or services provided by PFS to the Band. See Motion at Il-13. In re-L
' " OGD also mentions in passing that PFS "is not claiming the requested documents are privileged or...
confidential." Id. at 11. Of course, the limits on the scope of discoveiy are unrelated to restrictions based
.. on claims of privilege and confidentiality. Even if these documents were relevant and within scope, some of them include PFS confidential information and would be made available to OGD only subject to a confi-dentiality agreement (see discussion infra) or a protective order.
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, sponse to this document request, PFS informed OGD that the lease agreement and other
. relevant documents had already been produced by PFS at its document repository at Par-sons Behle and Latimer in Salt Lake City and that PFS confidential documents, including the lease, were available for OGD's review "for purposes of this proceeding upon exe-cuting an appropriate confidentiality agreement." PFS Objections at 8. PFS had previ-l ously apprised OGD during informal discovery that confidential portions of the lease i
l relevant to OGD O were available for OOD's review subject to execution of a confidenti-ality agreement,is and subsequently - at OGD's request - provided OGD a draft confi-I dentiality agreement to review and execute. In fact, other parties (the State and the NRC Staff) have'already obtained access to confidential portions of the PFS lease agree-
! ment upon agreeing to maintain its confidentiality."
OOD protests PFS's request that OGD sign a confidentiality agreement, and ar-gues that "the final lease [ agreement] must be released without condition to OGD" be-cause PFS has failed to articulate a basis for holding the lease agreement confidential. [d.
d at 12 (emphasis added). OGD fails to identify any support in the Commission's regula-
" h November 24,1998 letter from P. Gaukler (PFS) to J. Walker (OGD), attached as Exhibit 1.
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8' A copy of the January 11,1999 letter from P. Gaukler (PFS) to J. Walker (OGD) forwarding the draft confidentiality agreement is attached as Exhibit 2.
" The State received relevant portions of the confidential lease agreement after signing a confidentiality agreement essentially identical to offered to OGD. The NRC Staff received the same subject to agreement to hold it confidential pursuant to 10 C.F.R. @ 2.790.,See Exhibit 3, Affidavit of John Parkyn (requesting L NRC to withhold "the business lease between PFS and the Skull Valley Band"(i,d. at 3) and other PFS con-d fidential business information provided to NRC Staff). Mr. Parkyn's affidavit sets forth the bases why portions of the lease (and the other documents provided the Staff) constitute PFS sensitive confidential and proprietary information and should be withheld from disclosure under 10 C.F.R. I 2.790.
' " OGD also complains loudly that "OGD, which is almost entirely comprised of members of the Skull Valley Band of Goshutes, has yet to see an tmredacted copy of the final lease or other benefits conferred or promised to the Band." Motion at 13. It is unclear what relevance OGD intends this non-legal assenion to
' have on the Board with regard to PFS' discovery response.,
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L tions or case law' for its assertion that PFS "must" release its confidential information
- without condition" to OOD.~ Moreover, OGD has always known that PFS has claimed that portions of the lease contain confidential business 'information, ge Exhibit I at 3, and was well aware of the basis of the confidentiality claimed by PFS. Indeed, the Bu-.
reau ofIndian Affairs ("BIA") has determined that the lease contains confidential com-mercial and financial information that is not subject to disclosure under the Freedom of Information Act ("FOIA"), a determination which OGD's Chair has challenged in a Fed-eral suit against the Department ofInterior. OOD's request appears to be nothing more
. than an attempt to obtain through another avenue an unrestricted copy of the PFS lease agreement which was denied to it by another federal agency and is the subject of a Fed-eral district court lawsuit. The Board should reject OOD's attempt to subvert this legal process as well as the finding of the responsible federal agency, BIA, that the PFS lease
' agreement contains confidential commercial and financial information.20 In Document Requests Nos. 8 and 9, OOD requests information on "any funding" or "any federal financial assistance""provided to [each nuclear power facility that may ship spent fuel to the PFSF] and/or the facility's owner and/or operator by the NRC
" g United State ex rel. Blackbear and Bullcreek v. Babbitt, No. 2:99CV 0156K at 38-42 (C.D. Utah Mar.10,1999)(complaint). A copy of sections of the complaint requesting release of the lease under the
- FOIA is attached as Exhibit 4. The above suit has been combined with a lawsuit brought by the State also seeking release of the lease under FOIA. M State of Utah v. U.S. Department of the Interior, Case No.
, 2:98-CV 380K. PFS notes that the State, although challenging BIA's determination in a federal lawsuit,
' that portions of the lease are confidential, has for purposes of this proceeding executed a confidentiality agreement in order to review confidential portions of the lease. This would seem to be the reasonable
- course for OGD to follow as well, for there is no need to embroil this Board in the confidentiality issue that is currently being litigated in another forum.
o To the extent OGD continues to refuse to execute a confidentiality agreement for purposes of this pro-ceeding, PFS notes that the Commission's regulations allow for a protective order to protect such confi-
- dential information. See 10 C.F.R. 2.740(c)(6). Such a protective order could follow the terms of the con-fidentiality agreement in Exhibit 2, which were developed cooperatively between PFS and the State.
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e and/or any other governmental agency." Motion at 13. B ecause these two requests seek information concerning "any [ Federal] funding" or " financial assurance," regardless of whether it relates in any way to the PFSF or even to spent fuel storage, L they are both clearly far afield of OGD 0, and the Board must dismiss these requests. Document Re-quest No.10 - which requests information regarding Federal funding and non-monetary assistance provided to PFS related to identifying the Skull Valley site -is similarly out-side the scope of Contention OGD O.
OGD argues that these requests are relevant because "[a]gencies sometimes fund certain industry activities in order to learn more about health and safety issues or to en-sure improvement in health and safety protections," and therefore " receiving information about funds provided by government Lgencies could lead to information regarding the safety and impacts high level nuclear spent fuel storage [ sic]." Ld. at 14. This specula-i tion wholly devoid of any basis in fact fails to demonstrate that information regarding i
such alleged Federal financial assistance meets the " reasonably calculated" standard for j
discovery ofinformation regarding disparate impacts of a storage facility on the Skull Valley Goshute reservation.
For the foregoing reasons, OGD's Motion to Compel should be dismissed.
Respectfully submitted, I
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Jay E. Silberg Ernest L. Blake, Jr.
L Paul A.Gaukler SHAW PITfMAN 2300 N Street, N.W, Wash. DC 20037 Datedi June 16,1999 Counsel for Private Fuel Storage L.L.C.
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USHRC UNITED STATES OF AMERICA W JUN 21 P5 :06 NUCLEAR REGULATORY COMMISSION i
OFif Before the Atomic Safety and Licensing Board R
l ADJUD 7F In the Matter of
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PRIVATE FUEL STORAGE L.L.C.
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Docket No. 72-22
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(Private Fuel Storage Facility)
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ASLBP No. 97-732-02-ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the Applicant's Response to OGD's Motion to Compel Applicant to Answer Interrogatories and Produce Documents were served on the persons listed below (unless otherwise noted) by e-mail, except for Exhibit 4 which has been served by facsimile, with conforming copies by U.S. mail, first class, postage pre-paid, this 16th day ofJune 1999.
G. Paul Bollwerk III, Esq., Chairman Ad-Dr. Jerry R. Kline ministrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel
.U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 c-mail: GPB@nrc. gov e-mail: JRK2@nrc. gov and kjerry@erols.com Dr. Peter S. Lam
- Susan F. Shankman Administrative Judge Deputy Director, Licenpng & Inspection Atomic Safety and Licensing Board Panel Directorate, Spent Fuel Project Office U.S. Nuclear Regulatory Commission Office of Nuclear Material Safety &
Washington, D.C. 20555-0001 Safeguards e-mail: PSL@nrc. gov U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I
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Office of the Secretary
- Adjudicatory File U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission Attention: Rulemakings and Adjudications Washington, D.C. 20555-0001 Staff e-mail: hearingdocket@nrc. gov (Original and two copies)
Catherine L. Marco, Esq.
Denise Chancellor, Esq.
Sherwin E. Turk, Esq.
Assistant Attomey General Office of the General Counsel Utah Attomey General's Office Mail Stop O-15 B18.
160 East 300 South,5th Floor U.S. Nuclear Regulatory Commission P.O. Box 140873 Washington, D.C. 20555 Salt Lake City, Utah 84114-0873 e-mail: pfscase@nrc. gov e-mail: dchancel@ state.UT.US Johu Paul Kennedy, Sr., Esq.
Joro Walker, Esq.
Confederated Tribes of the Goshute Land and Water Fund of the Rockies Reservation and David Pete 2056 East 3300 South, Suite 1 1385 Yale Avenue Salt Lake City, UT 84109 Salt Lake City, Utah 84105 e-mail: joro61@inconnect.com e-mail: john @kennedys.org Diane Curran, Esq.
Danny Quintana, Esq.
Harmon, Curran, Spielberg &
Skull Valley Band of Gosbute Indians Eisenberg, L.L.P.
Danny Quintana & Associates, P.C.
1726 M Street, N.W., Suite 600 68 South Main Street, Suite 600 Washington, D.C. 20036 Salt Lake City, Utah 84101 e-mail: deurran@harmoncurran.com e-mail: quintana @xmission.com By U.S. mail only Palil A. GaukTer' Ducument #: 775222 v.I 9
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EXHIBIT 1 O
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SHAW PITTMAN POTTSeTROWBFJDQ
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A PAATNER.3NIF INCLUDINC FtoruseONAL CORFCAADONS I
2300 N Smet.N.W.
Washmaton. D.C. 20037 1128 1
202 663.8000 Featmile 202.663.8007 PAUL A. CAUKLER -
New York paul.gnuk er h wp tman.com November 24,1998
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Byf-Mail and Reaular Mail Joro Walker, Esq.
Richard E. Condit, Esq.
Land and Water Fund 165 South Main Street, Suite 1 Salt Lake City, UT 84114 Re:
Response to OGD's Informal Discovery Requests of October 9, 1998 to Applicant PFS and the Skull Valley Band
Dear Ms. Walker and Mr. Condit:
We have received your letter of October 9,1998 in which, as part of the informal discovery process in the Private Fuel Storage Facility ("PFSF") licensing proceeding, OGD requests a broad range ofinformation from Private Fuel Storage ("PFS"). The Skull Valley Band has forwarded to us a similar request to it of the same date to which we are also responding as the lead party in opposition to all admitted contentions contested by PFS and the Band. Ssg Private Fuel Storane. L.L.C. (Independent Spent Fuel Storage Installation),
LBP-98-7,47 NRC 142,244 (1998). In view of the outstanding cooperation that we have had with OGD and other parties to date in this proceeding, we are certainly interested and willing to cooperate with OOD in obtaining informal discovery. However, unfortunately we find ourselves in a position where -- except for parts of your request to the Band -- we must object to your requests for information because they are outside the scope of your contention in this proceeding.
The only contention submitted by OOD which has been admitted in this proceeding is part of OGD Contention O. Ssg LBP-98-7, agga,47 NRC at 226-234. OOD Contention 0, as admitted by the Board, was specifically limited to Bases 1,5, and 6. Id at 233. These
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admitted bases challenge PFS's assessment of whether minority and low income communities surrounding the PFSF site on Skull Valley Band Reservation will suffer b
disproportionately high and adverse human health and environmental effects by virtue of the
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. Joro Walker, Esq.
Richard E. Condit, Esq.
November 24,1998 Page 2 '
PFSF being located on the Reservation. Except for parts of your requests to the Skull Valley
' Band, your requests for information do not relate to the environmental justice issues of Contention 0 as admitted by the Board.
Specifically, paragraphs 1 through 4 of your request to PFS ask for the names and addresses of persons involved in the selection of a location for the PFSF. Such information does not relate to Contention O. The Contention as admitted by the Board is limited to the asserted " disparate impact" of the PFSF that allegedly results from its location on the Skull Valley Band's Reservation and does not involve the site selection process. Sg LBP-98-7,
' 19m3,47 NRC at 233. Indeed, the CommissioOas expressly reminded both the Board and the parties that, in accordance with its LES decision, Contention O is not to involve litigation of the justness or fairness of the site selection process or the motivaten of those involved in that process. Private Fuel Storane. L.L.C. (Independent Spent Fuel Storage Installation),
CLI-98-13,48 NRC 26,37 (1998).
Paragraphs 5 and 6 of your request to PFS ask for information concerning the owners of the PFS, including names, locations, and annual reports, as well as the articles of incorporation and agreements that pertain to PFS. Again this information does not relate to'
. OOD's Contention O, which concems alleged disparate impacts of the PFSF on surrounding communities. Paragraphs 7 through 10 of your request to PFS ask for information on each power plant that may contract to store spent fuel at the PFSF, including the names of such facilities, the quantity of spent fuel stored at each facility, and the space available at each for the storage of additional spent fuel. This information however, relates to the third and fourth bases of Contention O as originally filed - both rejected by the Board - which concemed the amount of additional spent fuel storage capacity allegedly needed at U.S. power reactors
/(basis 4) and the alleged benefits ofleaving spent fuel stored on-site at the power reactors as an attemative to the PFSF (basis 3).-
Thus, the requests in ps:apphs I through 10 of your request to PFS am outside of the scope of OOD's Contention O, as it was admitted by the Board. PFS finds that it must therefore respectfully object and decline to answer these requests because to do so would l
greatly expand the scope of the contention beyond that admitted by the Board. PFS, however, is ready and willing to respond to any requests that are within the scope of OGD's admitted contention.
Insofar as OGD's request to the Skull Valley Band is concemed, we are enclosing
, ith this letter demographic data currently in the files of the Band and its attomey pertaining w
to persons living and/or working on the Reservation which is responsive to your first request.
The person most knowledgeable about this data is Leon Bear.
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~ Joro Walker, Esq.
" Richard E. Condit, Esqi L
ENovember 24,1998
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- Paragraphs 2 and 3 of OOD's request to the E.md ask for the names and addresses of each person who participated in any manner, both on behalf of PFS and the Band, in the negotiation of the lease'of Reservation land to PFS The negotiations leading up to the lease are not, however, related to the issues of disparate impact raised in OOD Contention O.
' Rather, it is the final lease, as negotiated and agreed to by PFS and the Band, that may be relevant insofar as it identifies payments and other benefits to the Band. In this regard, the
. Applicant has produced at Parson, Behle & Latimer's offices in Salt Lake City a copy of the lease which contains information on payments and other benefits to the Band which would be available to OOD for purposes of this proceeding upon executing an appropriate confidentiality agreement.
Paragraph 4 of OGD's request to the Band asks for all documents that pertain to the lease of Reservation land to PFS. This request is overly broad for the same reasons as the requests in paragraph 2 and 3 discussed above. As stated there, the Applicant has produced a copy of the lease which contains the information pertaining to the lease that is pertinent to OGD Contention O.
Please call me should you have any questions concerning this letter.
Sincerely, M
Paul A.Gaukler Counsel for Applicant Document #: 682271 v.1 -
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SHAW PITTMAN POTTSeTFOWBRIDGE A FAATkttmer INCLUDIM*, MtOftsIIONAL CORPodLAnONS
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2300 N Simc, N.W.
Washanston, D.C. 20037 1128 202.663 8000 Facstnule 202.663.8007 PAUL A. CAUKLEA-New York 202.663.8304 Virginia Paulsauktereshawpittman.com January 11,1999 By E-mail and U.S. Mail Joro Walker, Esq.
Land and Water Fund of the Rockies l
165 South Main, Suite 1 Salt Lake City, UT 84111 l
Re:
Private Fuel Storage, L.L.C., No. 72-22
Dear Joro:
Enclosed for your review is a draft confidentiality agreement between OGD and PFS which would enable OGD to review and use in connection with the licensing proceeding PFS confidential information related to OOD's claims. The agreement is substantially the same as that which the State has signed and which we have proposed to Confederated Tribes.
Please let me know whether you have any questions or comments on the enclosed
- draft. If not, we will send out a final draft for OOD's execution.
Sincerely, Paul Gaukler Enclosure t
cc:
Richard E. Condit, Esq.
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Draft 01/11/99 CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT This Confidentiality and Nondisclosure Agreement (this "Agtsament") is entered into this day of January,1999, by and between Private Fuel Storage L.L.C., a limited liability company organized and existing under the laws of the State of Delaware ("Efji") and Ohngo Gandadeh Devis ("OOD"). PFS and OGD are collectively referred to herein as the
" Parties."
WHEREAS, PFS intends to develop, construct, finance, own and operate an independent spent fuel storage installation for the temporary storage of spent nuclear fuel on land leased from the Skull Valley Band of Goshute Indians on the Skull Valley Indian Reservation in the State of Utah (the " Facility");
WHEREAS, PFS has applied to the United States Nuclear Regulatory Commission
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("NRC") for a license permitting it to receive, transfer and possess power reactor spent nuclear I
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WHEREAS, OGD has intervened in PFS's license application proceeding, NRC Docket No. 72-22 ISFSI (the "NRC Proceedina");
3 WHEREAS, in connection with the NRC ProeMing, PFS may directly or indirectly furnish OOD with certain information that is confidential, sensitive, proprietary or that is not
'otherwise available to the public; and
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WHEREAS, PFS is willing to provide such information only on the condition that such information is protected from unauthorized use or disclosure as provided in this Agreement.
. NOW, THEREFORE, in consideration of these premises, the covenants contained herein,
...and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
- 1. Except as provided in paragraph 5 below, all information furnished by PFS to OGD in connection with the NRC PraaHiag, including, without limitation, commercial and financial information related to PFS's business, which is designated by PFS in writing as confidential or proprietary, will be referred to herein as "PFS Confidentini fafarva=+iaa" and shall be deemed to be "PFS Confidential Information" for all purposes of this Agreement. Allinformation or proprietary information provided by PFS to any other party to the NRC Proceeding under a Confidentiality and Non-Disclosure Agreement which is provided by such party to OGD shall be
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.. m deemed to be "PFS Confidential Information" for all purposes of this Agreement, provided that such information is identified by such other party as PFS Confidential Information or that such information is marked or otherwise identified as PFS Confidential Information.
- 2. OOD agrees to accept, receive and hold all PFS Confidential Information delivered or
. disclosed to it, either orally or in writing, in confidence and trust and to limit its use and disclosure as set forth in this Agreement. OGD shall not make any copy or in any way reproduce or excerpt any such information except in connection with the express terms hereof.
- 3. OGD shall limit the possession and use of all PFS Confidential Information to members or individuals employed or retained by it in connection with the NRC Proceeding
("OOD Employees"), and then only on a "need-to-know" basis. The Parties agree that when such disclosure must be made, it will be made only to the minimum extent necessary for the l
effective performance by the person receiving the disclosure of his or her duties in connection with the resolution ofissues related to the NRC Proceeding. Neither OOD nor any of the OGD Employees having access to the PFS Confidential Information shall use in any manner such Confidential Iaformation for any purpose other than the resolution ofissues related to the NRC Proceeding.
'4.
OOD shall treat and maintain the PFS Confidential Information as confidential and proprietary and shall not for any purpose er in any manner disclose such information to any person without PFS's prior written consent, except (a) to the NRC'in connection with the NRC Proceeding, (b) to parties to the NRC Proceeding (other than PFS, OOD and the NRC) which -
have executed and delivered Confidentiality and Non-Diwlosure Agreements with PFS in fonn and substance substantially 'similar to this Agreement; and (c) as may be required by law or a court or government agency (other than the State of Utah). OGD shall take all reasor.able steps to prevent and contest the disclosure by OGD Employeas of the PFS Confidential Information except as set forth in the pr-Hag sentence and shall seek protective orders to the extent available to protect the general dissemination of the PFS Confidential Information. Such steps to prevent disclosure shall include informing those persons to whom OGD provides PFS Confidential Information of this Agreement and the requirements thereof, and specifically identifying to those persons the PFS Confidential Information which is provided to them.
- 5. Nothing herein shall apply to PFS ConfidentialInformation which:
(a) at the time of receipt was already rightfully possessed by OGD or was already j
in the public domain; j
(b) ~ after being provided by PFS entered the public domain without any wrongful action or omission ofOGD; or i
(c) is obtained from any person or entity other than PFS and, to the best of OGD's knowledge, after due inquiry, said person or entity had the right to disclose such information.
- 6. The PFS Confidential Information shall remain the popty of PFS and shall, at PFS's request, be returned forthwith, together with all copies made by OOD, unless OGD 2
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submits a written statement certifying that all PFS Confidential Information not so returned has been destroyed.
7.-
OGD will not, without PFS's prior written consent, disclose to any person (except to
. the persons described in clauses (a), (b) and (c) of Paragraph 4 above) conclusions or judgements l
solely developed from the PFS Confidential Information that has been made available to OGD or L
that OGD has inspected.
- 8. If OOD chooses to use any part of the PFS Confidential Information in connection p
with the NRC Proceeding, it will disclose the PFS Confidential Information only to the NRC, to PFS and to other parties in the NRC Proceeding which have executed and delivered i
Confidentiality and Non-Disclosure Agreements with PFS in form and substance substantially the same as this Agreement. If OGD is required to disclose any part of the PFS Confidential Information as part of any legal or regulatory proceeding other than the NRC Proceeding, it will, prior to disclosure, advise PFS so that PFS can consent to the disclosure or obtain a protective order from the appropriate governmental authority. In either case, OOD will cooperate and use all reasonable and available efforts to obtain confidential treatment for any PFS Confidential Information so disclosed, including, with respect to the NRC Proceeding, request that PFS Confidential Information be withheld from public disclosure pursuant to 10 C.F.R. 2.790.
- 9. Each Party hereby agrees and confirms that the subject matter of this Agreement is l
' unique, and that it may be impossible to measure the damages which would result to PFS and I
from the violation by OOD of this Agreement. In addition to any other remedies which PFS m'ay have at law or in equity, it shall have the right to obtain preliminary and permanent injunctive l
relief to secure specific performance and to prevent a breach or threatened breach of the provisions of the Agreement.
- 10. No interest in the PFS Confidential Info,mation shall be deemed to have been granted to OOD or to any other party or person to whom suc!2 information was provided.
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- 11. The faP re or delay in exercising any right, power or privilege hereunder shall not constitute a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise or the exercise cf any other right, power or privilege hereunder.
- 12. This Agreement shall be governed and construed in accordance with the laws of the L
State of Utah (except for the provisions of such law with respect to conflicts oflaws).
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- 13. If any provision of this Agreement is determined to be unenforceable or invalid by a court of competent jurisdiction, it shall be given effect to the extent it is enforceable or valid, and such unenforceability or invalidity shall not effect the enforceability or validity of any other provision of this Agreement.
- 14. This Agreement shall inure to the benefit of PFS and is respective successors and assigns and shall be binding on OGD, its officers, directors, memers and employees and their respective successors and assigns.
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- 15. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which shall constitute the same agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Confidentiality and
. Nondisclosure Agreement, or have caused this Confidentiality and Nondisclosure Agreement to be duly executed on their behalf, as of the date set forth below.
PRIVATE FUEL STORAGE L.L.C.
By:
Name:
Title:
OHNGO GAUDADEH DEVIA By:
Name:
Title:
Dated: January 1999 693869 e
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EXHIBIT 3
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