ML20198D328
| ML20198D328 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/05/1998 |
| From: | Silberg J External (Affiliation Not Assigned), SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#198-18714 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9801080192 | |
| Download: ML20198D328 (9) | |
Text
'
^
>^"-cs-os is.20 reon cuaw gizrnxu gorra mm nu o
}((/f 00CXU E0 USNRC M JAN -5 P4 :21 January 5,1998 OFRC-gmq
. p, RUu n.n i
ADJUDC y & ' li3fF UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION Before tile. Atomic Safety and Licec=ing Board In theMatter of
)
)
PRIVATE FUEL STORAGE L.L.C.
)
Docket No. 72-22
)
(Private Fuel Storage Facthty)
)
ASLBP No. 97-732-02-ISiSI APPLICANT'S OPPOSITION TO THE STATE OF UTAH'S AND CASTLE ROCK'S MOTIONS FOR LEAVE TO REPLY TO THE NRC STAFF'S AND PRIVATE FUEL STORAGE LLC'S RESPONSES TO PTTITIONERS' CONTENTIONS Applicant Private Fuel Storage L.L.C. C' Applicant") files this response of Utah's (the " State") " Motion for Leave to Reply to the NRC Staff s and P Storage, LL.C.'s Responses to Petitioners' Contentions," dated Decemb the nearly identical motion filed by the petitioners Castle Rock Land and Liv and Skull Valley Co., LTD (collectively " Castle Rock") for " Leave to Reply to the Staff s and Pri" ate Fuel Storage LLC's responses to Petitioner's Contentions,"
~ December 31,1997.1 In these motions, the State and Castle Rock seek leave t
'Applicat.t notes that Castle Rock's mota wa* ~ Sed on behalf of Endgn Ra sk. San "Castic Rock Land and Livestock,
. LC., whicnis ajoint A with with CastL.C., Skun VaBey Cwnpany, Petita to Intervene dased September 11,1997.
1 9801090192 9 2 822 li.l l.liI.lli.,l.ll1. ll.1ll c"
^=ck o
- r..
b508
. -,. ~ -...
.. JAN-CG*C3 ~1a CO.FOCMTgtHnw p! T! MAN POTT 3 -
IDe202nc3:337'-
PAGE 3/O'
'?.
h
' before Jamaasy 22,1998, a written reply - in adEna to the oral reply provided scheduled p.d -hg conference - to theNRC Starf and Applicant's reopeasesto Petitionan'_contamions. The Applicant opposes both the State's and Castle {
motions for leave to file a wiinan reply.
7
-l First, the leading legal authority reti d upon by the State and Castle Rock -
t Unit l
. E_mmon IAhting mad Power comeany (ADens CreekNuclear Generating Statio 1)i ALAB-563,10 NRC 521 (1979) - only held that a petitioner must be chance to be heard in response" to challenges raised to its contentions. 10 N The specific chance provided for in that case was an oppottunity "to prese argudwnt" at the prehearing g,..Lw.cc. LL at 523.
Here, both the State and Casde Rock will be provided a$e opportunity haard in response" to the challenges raised by the NRC Staff and the lgpli contentions. The Board, in its teleconference with the NRC StafE the Applic Petitioners on December 8,1997, stated that it would allow the Petitioners a cha present argument with respect to the admissibility of their contention l.
corfirence. Moreover, the Board has set aside up to four days for such arr n
opportunity for response provided to both the State and Casde Rock l
C k that"the A
, Petitioners certainly satisfies the legd requirement set forth in A kas ree proponent of a cantanian... be given sorne chance,to be heard in z525. Awritten rep y s neither required nor necessary.
li n
2 1
i
-w-e
-.,___.s,
.. ' ~
,,w...,
y
^ - - - " '~ ' ' ~
~~
" ~ ^ ~ ~
JdN-Go-COEtne231FGoMeCHAW P!TTMAN POTT 3i IDi232333CoS7 PACE 4/O-
' e,.
Nehhrc do the other legal precedents ched by the State and Castle Rock support their position that they are entkled to a written reply in addition to oral argument at th
- pteheering ronference M= Id=> T i-Maa C==anv (Shoreham Nuclear Power Station, Unit 1), LBP 81-18,14 NRC 71,72-73 (1981) involved a situation where no pid.c -ir.g ec..'.uce was held with respect to the " particularized contention" filed by the p.Gders,s there, & Accordigi, a written reply was the only means available to pri the petitioner "some chance to be heard in response" to the challenge to hs cor.:ent Simil.arly, t% w3ent feature of Georeia Power Cornamne (Vogtle Electric Generstmg Plant, Units 1 and 2), LBP-94-22,40 NRC 37 (1994) is the absence of any pihing conference at which oral argument couki be presented.8 Accordingly, neither Shoraham nor yngde involved a situation - such as that here - where the p-;&+m wn) be provided ample opportumty at a prehearing conference to respond to the chal by the Apphw and the Staffto their contentions.
Ulowise, Castle Rock's rehance on the Statement of Considerations to the 1989 amendments to the Rules ofPractice is mi-f M ne quotation som the Statement of Considerations set forth on page 2 of Castle Rock's motion is focused specifically on the intended effect of the " proposed amendments" d~pM by the Commission which
= b r as,if elaborated on the pleading rags.w w. for contentions: "(T]he proposed sT_
4r Addmonally, the issue in Vogds did nos involve ibe admissibility of canwanane but the pro 2
Ses40 af considering amw basis proffered by an intervenor for an already adnvirred coert-inan NRC at 3940.
3
-.m w
_,m-,
',.mm/
,.7-
m. _..
JAN-OE-C3; toe 20 FRoMsCHAW PITTMAN POTTS ids 2o20030797 PACE-5/9 rtant toolin cryg.uMag dispute 6 at an early b
i vigorously enforced, could ecome an mpo
' state in the preWS. thereby significantly improving the efEciency and qua hearing process." 54 Fed. Reg. 33,168, 33,169 (1989).3 -
Under the Commission's Rules of Practice as nW. this cry **** don is to occur in the body of the contentions and their bues as filed by a petitioner, not in a written reply by the petitioner, on which both the amended tules and the S Considerations are completely silent. As discussed in Applicant's Answer to 4
Contentions, the proposed amendments as adopted by the Commission r for the admission of contentions by requiring the proponent of a contention t some alleged fact or facts ar.d other supporting information to show that a ge Itisthisincreased threshold of material fact or law exists. 54 Fed Reg. at 33,168-170.
for cantandona, and not a petitioner's wzitten reply, that provides the mecha disputes are to be "crystalliz[ed]... at an eerly stage in the proMag " li a Additionally, the State's request appears to seek the opportunity to reply to Applicant's and NRC Staff s reeporm to all contensions, not just those of th e
nus, the title of the State's filing refns to " Petitioners' Contar tions," rather than
" Petitioner's" or "the State's" contentions. The State also refers to the need to "PFS's 672 paSe response and the Staff s 136 page response," not just S=prM, the acmal phrase goosed by Casde Rock is the Commission's su 8
"opimon of some commeuron" and not, as repusensed by Castle Rock, th explan=nna of the proposed rewsions to 10 C.F.R. Part 2.
4
~ - _
'JMN-OG.CO 15i03 FOOMsCHAW-PtTTMAN POTT 3
- 1De2G23333337-PACE.
o/g-t i
- addressing the State's contentions NRC's Rules of Practice clearly resnict answers to petitions to intervene or supplements to such petitions to "any party to a C.FA i 2.714(c). The Etate is not yet a party. If the NRC regulations do'not per j
State to respond to other pet:doners' supplements to petitions to intervene (whic mechanism for Sing contentions, aan 10 C.FA { 2.714(b)(1)), the rules cestainly do no permit the State to respond to the Applicant's and the Staff s answers to contentions.'
Finally, while Applicant submits that no written replies are warranted, even, Board were to allow such tvritten responses, the eMd* proposed by the State and Castle Rock is g.ossly unreasonable. The date proposed by the State and Cast the filing of their replies - Isauary 22,1998 -is one business day before the s prehearmg Msce. Counsel for Applicant would not have adequate time t 7
replies or to consult with their client before =<d.isg to Utah for the site visit a prehearing conference. The proposed ewd* for the State and Castle Rock to writtest replies would not allow sufficient time for the Applicant to properly review such replies in preparation for the prehearing desce.
Castle Rock's moocn is ambignone in this nnpset. Although the title ruders to seek Reply to the NRC Staff's and Pzrvans Fuel Storage, LLC's Rasponse to E li
' "672page
_ (emphasis added), the body of the monen refers to the asedto reply to the App cant s l
tospense" and the Staff's "136 page naponse" without indicains any imens to lim Rk thoseporcens of the respenes eg " tn CasdeRadc's commentions. Tothe estan i
i t
seeks to rely to the Appbant's and the Staff's resycesos to other W rs' <=wnt nne, t mu be denied for the same renacos as set fbrth above with respect to the Staas.
5 7fic.
f-
=w w1 m
9 m+1+-+'s g,,ra-g-
y--,.,,,y t
,-n, y
y 1
H
'JAN-CD-COL 15*2D FROMiCHAtt P!TTMAN POTTO IDe2G20330337 PACE.
7/D For the foregoing repons, the Applicant respectfully regrests that the Board de l both the State's and Castle Rock's motions to Sie written reply to the Applicant' NRC Staff s responses to Vetitioners' contentions.
RWy submitted, h
' A Jay $)SEMg d
ErnettL. Blake, Jr.
Paul A.Gaulder SHAW,PITTMAN,POTTS &
TROWBRFaE.
2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 Counsel for Private Fuel Storage L.L.C.
Dated: January 5,1998 5355at k.,
6
.I
- ~
JAN-CG-CO 13e20 FRoMeCHAW P1TTHAN PoTTE 10.s 232CG30C07 PAGE C/C i
DOCKEIED USSRC
% JAN -5 P4 :22 1
OFFIC.,: c RUn4 /.ly '
UNITED STATES OF AMERICA
% U n f. >
gjF NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licantine Board
)
in the Matter of
)
PRIVATE FUEL STORAGE L L.C.
)
Docket No. 72-22
)
(Private Fuel Storage Facility)
)
ASLBP No. 97-732-02-ISFSI CERTIFICATE OF MERVICE I hereby certify that copies of the " Applicant's Opposition to the St e o and Castle Rock's Motion for Leave to Reply to the NAC StafPs and Private Storage, LLC's Responserto PetitionersCbnternio~ ns"datedJanuaryS,199 served on the persons listed below'(unless otherwise noted) by facsimile copies by US mail, first class, postage prepaid, this 5th day of January 1998
'G. Paul Bollwerk III, Esq., Chairman Dr.JerryR Khne Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel
~ U.S. Nuclear Regulatory Commission U.S.NuclearRegulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001
- AdjudicatoryFile Dr Peter S, Lam -
Atomic Safety and Licensing Board Panel L Administrative Judge U.S.Nucicar Rp*ary Commission Atomic Safety and Licaneng Board Panel Washi: gton,D.C.20555-0001 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 7
m m
m.
..-_4
('
.'t ID42020330087' PACE D/D JJAN-05-CG'1Gs2o FCOMeeHAtt-PITTMAN POTTS-Chades J.Haughney Catherine L.Marco,Esq.
Acting Director, Spent Fuel Project OfEce SherwinE. Turk,Esq. '
Of5ce ofNuclearMaterial Safety and OfSce of the GeneralCounsel Safeguards Mail Stop O-15 B18.
U.S. Nuclear Regulatory Commission
- U.S. Nuclear Regulatory Commission Wa=hinym D.C. 20555 Washington, D.C. 20555 Jean Belille,Esq.
Denise ChWlar, Esq.
Ohnso GaudadehDevia Assistant Attorney General Land and Water Fund oftheRockies Utah Attorney General's OfEce 2260 R=* aline Road, Suite 200 160 East 300 South,5' Floor Boulder, Colorado 80302 P.O. Box 140873 SahLake City, Utah 84114-087 Danny Quintana,Esq.
- John PaulKennedy, Sr., Esq.
SkullVaBeyBand ofGoshuteIndians Confederated Tribes of the Goshute 1>anny Quintsoa & Associates, P.C.
Reservation and David Pete 50 WestBroadway,FourthFloor 1385 Yale Avenue SaltLake City, Utah 84101 SeitLake City, Utah 84105 Of5ce of the Secretary Clayton J. Parr, Esq.
U.S. Nuclear Regulatory Commission Castle Rock, et al.
Wa=h*Taa, D.C. 20555_0001 Parr, Waddoups, Brown, Gee & Loveless AssassiosuRulemakings,and,"pha=
185 L Ssans S% Suha.1300 Staff' P.O. Box 11019 (originalandtwo capus)
Salt Lake City, Utah 84147-0019 Diane Curran,Esq.
2001 S Street, N.W.
Washington,D.C. 20009
- By U.S. mail only 01 e di Paul A.Gaukler si 2
I k
. +
.r,v-
.. - ~ -
-m e.-.
JAN-Cs.C3 3g,27 Pfd3M 8 CHAW : P I T*.* MAN ~ PoTTS
!Di292133E357-PACE 1/g J
. SHAw, PiTTMAN, PoTTe &'t nowsmuur.
A CefePostAwores A PAarnesseMP kn i rmes N _
T, N.W. WAscuwoToet D. *. 20027 23OO N Cret:
frAcameut NuMasR: (202) 663 tsOO7 -
.. ~
MAN NUMeet: (202) 663-8000 PAGE
- FACSIMILETRANSMISSION COVER ren ourmourioN Lsr Date Detegsber31,1997 ~
PutAaE SCC TtE FOLLOWNG PAGC(5).-
Direct Dial: 32 M? *^53 From: Jay E.Saberg 9
Total Pages(including cover):
PLEASE DELIVER TO THE FOLLOWING PEOPLE IN Y VERIFY
/ IF-ORGANIZATION NUMBER LOCAL FAX NUMBER NAME
'O. Paul Bollwerk,III, Esq.,. Atomic Safety and Licensing 301-435 7454 2
301 415-5599 Board Atotnic Safety and Lk+s==
301-415-7463 2
301 415-5599
% an Dr. Jerry R.Kline,,,.
Administrative' Judge Baant Atomic Safety and Licensing 301 415 7464 2
E J15-5599 -
Dr. Peter S.1 M=inistrative Judge Board Office of the Gw.I Counsel 301 415-3052 2
301-415-3725 Cstherine L.Marco Esq.
SWein E. Turk, Esq.
Denise Chanoe!!or,Esq.
Utan Attorney C i.e.Js 801-366-0286 O
801 366 4 292 Office 801-363 7726 O
801 521-4625 I
Danny Quintana, Esq.
Danny Quintana &
Associates, P.C.
801 581 6170 0
801-581 1007 John PaulK=r.cdy, Sr., Esq.
Land and Wate. Fund of the 303 2 1188 0
303-786-8054 s
Jean Belille,Esq.
Ro:kies-Cla3 ton J.Parr, Esq.
Parr, Wady, Brown, Gee 801 532 7840 O
801-532-7750
-4
& Loveless 202 328-3500 2
202-328-6918 301-415-1966 2
301-415 1101 Diane Curran, Esq.
U.S.NRC Office of the h wy COMMElf13:
Pn:vious fax had omiM page 4 of the brief.
8613
- IF YOU DO NOT HECEIVE AL.L PAGES, PLEASE CALL (202) 663-SH AW,PITTMAN USE ONLY Client Nember: 01549 4000 Time Sabanitted:
UserID Number: 0114 4
Request Tr==a=%s Dy:
Time Transmitted:
g i that teprM-
. Thisfecountle message is t.saded o +for the use ofde indMd
-m in error, please noth as legod aned c: ;"'
'~~ is strindyprohibtsed Jfyou how recetud this c
" banion er copyhw qf ant.-
beenenbese{v by relephone et (202) 6634613 11annakyou ;
. -