ML20198D363

NRC Staff Response to State of UT Motion for Leave to Reply to NRC Staff & Private Fuel Storage,Llc Responses to Petitioners Contentions.* State Motion Should Be Denied.W/ Certificate of Svc

ML20198D363
Person / Time
Site:	07200022
Issue date:	01/05/1998
From:	Marco C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#198-18715 ISFSI, NUDOCS 9801080200
Download: ML20198D363 (7)

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NUC ULA ORY SSIONJ

-OFFICE OF SECRETARE RULEhW3rGS AND-BEFORE THE ATOMIC SAFETY AND LICENSING BOAREDJUDiCATCNS STAFF l i 7

- In the Matter of . )

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PRIVATE FUEL STORAGE, LLC ')- Docket No. 72-22-ISFSI -

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Fuel Storage Installation) )

NRC STAFF'S RESPONSE TO STATE OF UTAH'S  :

MOTION FOR LEAVE TO REPLY TO 3E NRC STAFF'S AND  !

PRIVATE FUEL STORAGE.11C'S RESPONSES TO PETITIONERS' CONTENTIONS INTRODUCTION

' Pursuant to the Atomic Safety and Licensing Board's " Order (Schedule for Responses to-Motion for Leave to File Reply," dited December 31,1997 (Board Order), and 10 C.F.R. I 2.730(c),

the staff of the Nuclear Regulatory Commission (Staff) hereby responds to the " State of Utah's Motion for Leave to Reply to the NRC Staff's and Private Fuel Storage, LLC's Responses to Petitiorers' Contentions" (State's Motion), dated December 30,1997. - For the reasons set forth :

c below, the State's Motion should be denied.'

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On December 31,' 1997, petitioners Castle Rock Land and Livestock, LC. and Skull Valley

. Co., LTD filed a motion for leave to reply to the Staff's and Applicant'_s responses to contentions.  :

. See " Motion of Petitioners Castle Rock Land & Livestock, L.C. and Skull Valley Co., LTD. For

Leave to Reply to'the NRC Staff's and Private Fuel Storage, LLC's Response to Petitioner's Contentions," dated December 31,- _1 997. This motion contains essentially the same arguments _ sa -

m the State's Motion and, therefore, for the same reasons as set forth herein, the motion of Castle Rock

; Land & Livestock, L.C. and Skull _ Valley Co., LTD should be denied.

, BACKGROUND Pursuant to the " Memorandum and Order (Ruling on Motions to Suspend Proceeding and for Extension of Time to File Contentions)" (Extension Order), issued on October 17,1997, the Board ordered that hearing request / intervention petition supplements, including contention lists be filed by November 24,1997.2 Extension Order at 11. Funher, in its Extension Order, the Board provided December 22,1997, as the date for filing responses to any hearing request / intervention petition sapplements. Id. The Board did not provide for funher responses.'

On or about November 24,1997, contentions were filed by each of the petitioners for leave to intervene in this proceeding.' On December 24,1997, the Staff and Private Fuel Storage, LL.C.

(Applicant) filed their responses to the Petitioners' contentions. See Staff's Response to Contentions;" Applicant's Answer to Petitioners' Contentions,"(Applicant's Response). Thereafter, on December 30,1997, .he State filed its Motion for leave to file a reply to the Staff's and Applicant's Responses by January 22,1998. On December 31,1997, the Board issued its Order, requiring respenses to the State's Motion to be filed by January 5,1998.

2 This date reflected the Board's grant of a thirty-day extension of time for the filing of contentions at the request of the State. See Extension Order at 8-9; see also " State of Utah's Motion for Extension of Time to File Contentions," dated October 1,1997.

' This date was subsequently moved to December 24,1997. See " Order (Granting Motion for Extension of Time to File Responses to Cententions and Supplemental Petitions," dated December 18,1997.

• A list of the various Petitioners' filings is set forth in the Staff's December 24,1997, "NRC Staff's Response to Contentions Filed by (1) the State of Utah, (2) the Skull Valley Band of Goshute Indians,(3) Ohngo Gaudadch Devia,(4) Castle Rock Land and Livestock LC., dt Al., and (5) the Confederated Tribes of the Goshute Reservation and David Pete," at 1-2 & nn. 2-6 (Staff's Response to Contentions).

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DISCUSSION q

t The State should not be provided an opportunity to file a reply to the Staff's and Applicant's Responses because neither the Board's Extension Order, nor 10 C.F.R._ i 2.714(c), provide for a party to stlomit a further reply to responses to contentions. Moreover, the State has not demonstrated good cause for leave to file a reply, in accordance with 10 C.F.R. I 2.730. The State claims that "some written reply" to the voluminous responses of the Staff and Applicant would help define the issues in the paceeding and that NRC case law conf' m as petitioner's right to reply to objections to contentions.5 See State's Motion at 1-2. The State, however, through its participation in the e

prehearing conference scheduled for January 27,1998, will be able to raise issues conceming contentions.' The State has not provided any reason for why this opportunity would not be sufficient to protect its interests. Therefore, any additional written reply would only increase the voluminous :

record in the proceeding without any demonstrated benefit.

8 In support ofits Motion, the State additionally refers to the intervening holiday periods and the Applicant's expected January 6,1998, response to the State's Contentions Z through DD State's

- Motion at 2.- With respect to the Applicant's response to the remaining comentions, the Board on December 31,1997, granted the Applicant's request to file its response on January 6,1998, and in so doing, did n_ot provide for further responses. See " Order (Granting Leave to File Response to

Contentions and Schedule for Responses to Late-Filed Contentions)," dated December 31,1997.

' On December 1,1997, the Board issued a " Memorandum (Site Visit and Prehearing

- Conference)" in which the Board set the tentative schedule for the site visit and prehearing conference for the week of January 26,1998. Thereafter, on December 8,1997, the Board held a telephone conference with the parties to discuss the site visit and prehearing conference. During the -

ll telephone conference, the Board Chairman,in response to a question from the Applicant's counsel, l_ stated that the parties would have an opportunity to comment on the contentions. Moreover, in its December 31,1997,'" Order (Granting Leave to File Response to Contentions and Schedule for l

L Responses to Late-Filed Contentions)" (Order Granting leave), the Board recognized that there may l 1 be oral argument at the prehearing conference and it may involve matters which concern proprietary p information.-. Order Granting Leave at 3.

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- In support of its Motion, the State cites Long Island Lighting Co., (Shoreham Nuclear Power.

Station), LBP-81-18,14 NRC 71,72 73 (1981), quoting Houston Lighting and Power Co., (Allens

- Creek $uclear Generating Stvion, Unit 1), ALAB 565,10 NRC 521 (1979). In Shoreham, the Licensing Board sought to preserve the intervenor's opportunity to be heard with respect to its contention and, therefore, entertained its reply to responses to its contentions. Unlike the instant -

- proceeding, however, it is not apparent that the Shoreham intervenor was given an opportunity to

_ provide oral argument. In the instant proceeding, on the other hand, the State and other petitioners .

are being afforded an opportunity to respond. In the Allens Creek decision, which was quoted by the '

Shoreham Licensing Board, the Appeal Board stated that "[b]efore any suggestion that a contention should not be. entertained can be acted upon favorably, the proponent of the contention must be given i

. some chance to be heard." Id. at 525. In that case, the Appeal Beard was primarily concerned with the Licensing Board's decision to prohibit the intervenor from presenting oral argument at the prehearing conference in support of the contentions it had advanced and did not require that the intervenor be given an opportunity to file a written reply. See Allens Creek at 523. The instant petitioners, by contrast, will have that opportunity at the prehearing conference. Therefore, since the State has not shown any special circumstances warranting the relief it seeks, the State's Motion should be denied.'

• 7 In the event, howeverIthat the Board determines 'that the State should, neve4theless, have -

an opportunity to reply to the Staff's and Applicant's responses, the State should be required to serve its reply no later than Wednesday, January 14,1998, to ensure receipt by the Staff and Board by 4:20

'pm EST. Tha Staff needs time to consider the information to be submitted by the State in order to prepan: a meaningful response at the prehearing conference. The Staff strengly opposes _the State's ,

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proposed da'e because the Staff would have an inadequate opportunity to prepare a response for 1 presentation at oral argument.

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_ C_ONCLUSlQM

. For the rea.;ons set forth above, the State's and Castle Rock's M' otiens for leave to rep!f to -

the Staff's and Applicant's responses to co itentions shouM be denied.

Respectfully submitted,

$ 0 VuYL f. %cw

• Catherine L Marco Counal for NRC Staff

- Dated at Rockville, Maryland this 5th day of January 1998 4

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4 00CKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 JAN -6 A7 :25 BEEORE THE ATOMIC SAFETY AND LICENSING BOARBvFRCE OF SECREiMY RULEM&iNi.S AND In the Matter of ) ADJUD: CAT!ONS STAFF

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PRIVATE FUEL STORAGE, LLC ) Docket No. 72-22-ISFSI

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(Independent Spent )

Fuel Storage Installation) )

CERTIFICATE OF SERVICS I hereby certify that copies of "NRC STAFF'S RESPONSE TO STATE OF UTAH'S MOTION FOR LEAVE TO REPLY TO THE NRC STAFF'S AND PRIVATE FUEL 1 STORAGE LLC'S RESPONSES TO PETITIONERS' CONTENTIONS" in the above captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk, by Email (with confirming copies by deposit in the Nuclear Regulatory Commission's internal rcall system or b; deposit in Uni ted States mail, first class) this 5th day of January,1998:

Office of the Secretary G. Paul Bollwerk, III, Chairman

• ATTN: Rulemttings and Adjudications Administrative Judge Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 (E-mail copy to GP'8@NRC. GOV) .

Dr. Peter S. Lam

• Administrative Judge Dr. Jerry R. Kline*

Atomic Saftty and Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission (E-mail copy to PSL@NRC. GOV) Washington, DC 20555 (E-mail copy to JRK2@NRC. GOV)

James, M. Cutchin, V* %

Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission (by E-mail to JMC3@NRC. GOV) Washington, DC 20555 i

_- .__-___m-. _ _ _ . _ _ _ _ _ _ _ _ _ . - . _ _

Office of the Commission Appellate Jean Belille, Esq.*

Adjudication ,

Land and Water Fund of the Rockies Mail Stop: 16-G-15 OWFN 2260 Baseline Fnad, Suite 200 U.S. Nuclear Regulatory Commission Boulder, CO 80302 Washington, DC 20555 (E-mail copy to landwater@lawfund.org)

Denise Chancellor, Esq.* Danny Quintana,~ Esq.*

Fred G. Nelson, Esq. Danny Quintana & Associates, P.C.

Utah Attorney General's Office 50 West Broadway 160 East 300 South,5th Floor Fourth Floor P.O. Box 140873 Sah Lake City, UT 84101 Salt Lake City, UT 84114-0873 (E-mail copy to quintana (E-mail copy to dchancel@ State.UT.US) @Xmission.com)

Connie Nakahara, Esq.* Clayton J. Parr, Esq.*

Utah Dep't of Environmental Quality PARR, WADDOUPS, BROWN 168 North 1950 West GEE and LOVELESS P. O. Box 144810 185 S. State St., Suite 1300 Salt Lake City, UT 84114-4810 P.O. Bcx 11019 (E-mail copy to enakahar@ state.UT.US) Salt Lake City, UT 84147-0019 (E-mail copy to karenj@pwlaw.com)

Diane Curran, Esq.*

Harmon, Curran & Spielberg John Paul Kennedy, Sr., Esq.*

2001 S Street, N.W., Suite 430 1385 Yale Ave, Washington, D.C. 20009 Salt Lake City, UT 84105 (E-mail copy to dicurran@aol.com) (E-mail copy to john @kennedys.org) hy E. Silberg, Esq.*

SHAW, PITTMAN, POTTS &

TROWBRIDGE 2300 N Street, N.W Washington, DC 20037-8007 (E-mail copy to jay _s'lberg

@shawpittman.com) cAbt +u .. Ohu~

Catherine L. Marco Counsel for NRC Staff