ML20198E190

Memorandum & Order (Revised General Schedule).* for Reasons Set Forth,Board Grants Requested Informal Discovery Extension & Revises General Schedule for Proceeding.With Certificate of Svc.Served on 981223

ML20198E190
Person / Time
Site:	07200022
Issue date:	12/23/1998
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	UTAH, STATE OF
References
CON-#498-19839 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9812230359
Download: ML20198E190 (10)

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UNITED STATES OF AMERICA 00CKETED USHRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '98 OEC 23 P2 :10 Before Administrative Judges:

OFF, G. Paul Bollwerk, III, Chairman flu '

i Dr. Jerry R. Kline Dr. Peter S. Lam 8ERVED me 23 me In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel Decembe - 23, 1998 Storage Installation) i MEMORANDUM AND ORDER (Revised General Schedule)

The Board has before it (1) the December 1, 1998 request of intervenor State of Utah (State) to extend the informal discovery period; and (2) the proposals of applicant Private Fuel Storage, L.L.C., (PFS) and the NRC staff to revise the June 29, 1998 general schedule as discussed during-the December 11, 1998 prehearing conference, Tr. at 1007-48 & exh. 1. For the reasons set forth below, we grant the requested informal discovery extension and revise the general schedule for this proceeding. A new version of that schedule is included as Attachment A to this issuance.

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I. BACKGROUND l

In support of its informal discovery extension request, f the State cited a November 24, 1998 joint discovery status report, which noted that the applicant's responses to the seismic portion of the staff's April 1, 1998 requests for additional information (RAI) was being delayed from i I

mid-December 1998 to mid-January 1999, and a November 24, 1998 staff letter to the Board in which the staff indicated it would be issuing second round RAIs relating to some of the issues in Group I and Group II, as those contention groups were established in the June 1998 general schedule.

Thereafter, in its December 7 response to the State's motion, PFS declared that as a result of discussions among counsel, it appeared that for the scheduled. August 1999 hearing on Group I issues, the staff would be prepared to go to hearing on only one or two contentions. While expressing its desire to move forward expeditiously, the applicant nonethelese declared it made more sense to postpone the hearing until a greater number of contentions I

could be heard. PFS further advised that courtsel were discussing an alternative schedule and requested that the h matter of revising the June 1998 general schedule be discussed at the already-scheduled December 11, 1998 prehearing conference.

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1 l On December 10, both PFS and the staff circulated by i

e-mail versions of a revised schedule, which the Board and the parties discussed at some length during the prehearing conference the next day. The matters in controversy included the timing of any informal discovery cutoff relative to the_ applicant's RAI responses; the timing for filing-summary disposition motions; and the contentions to be included in Group I and Group II.

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II. DISCUSSION Under the informal discovery cutoff date established in j the revised schedule, the intervenors should have some 1

opportunity for informal discovery relative to applicant l

responses to all outstanding staff RAIs. There is the possibility that applicant responses to these pending RAIs b

will be delayed or the staff will issue further RAIs that require-additional responses. If that occurs, the parties are free to request appropriate relief from the Board.1 2

Also with respect to discovery, when we previously requested party comments on the impact of the Commission's July 28, 1998 policy statement on expediting the hearing

, process, CLI-98-12, 48 NRC 18 (1998), the staff recognized l but posed no objection to discovery regarding its draft environmental impact statement (DEIS), declaring that "the net result could be to expedito the proceeding . . . .

NRC Staff's Comments on the Schedule in Light of the Commission's Policy Statement on the Conduct of Adjudicatory l

Proceedings (CLI-98-12) (Aug. 10, 1998) at 6. Now, citing that same policy statement, the staff asserts that such L d' covery would not be useful. Egg Tr. at 1033-34.

(continued...)

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In connection with the timing of summary disposition, we adopt the applicant's proposed schedule relative to the Group I contentions. Formal discovery against all parties except the staff closes on May 28, 1999. From our discussions with the parties, it appears that only the applicant and the staff are likely to seek summary disposition. Egg Tr. at 1024-25. They should be able to do so within thirty days of the end of formal discovery against the intervening parties, the time period established under the original schedule. (In fact, with the incentives we have established for early filing, see Licensing Board Memorandum and Order (Additional General Schedule Guidance and Informal Discovery Status Conference Schedule) (Aug. 20, 1998) at 5-8, PFS or the staff may wish to seek summary  ;

disposition well before that date.) Further, because discovery will still be ongoing against the staff, an intervenor may utilize that opportunity to gather information necessary to oppose any dispositive motion. We thus see no compelling reason why the applicant's summary 1(... continued)

We have retained the schedule's provisions for DEIS-related discovery. Given the policy statement's recognition that discovery may commence prior to issuance of l

a final EIS if it would expedite the proceeding, CLI-98-12, 48 NRC at 24, we believe further justification is needed to support rescinding'DEIS-related discovery in toto.

Nonetheless, to avoid DEIS-related discovery interfering with other ongoing activities, we have now confined it to a period in the spring of 2000.

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.,x disposition schedule, and the dates that flow from it relative to. pre-filed testimony and hearing dates, should not be adopted.2 Finally, concerning the contentions to be litigated'in

. Group I and Group II, we see no reason at this juncture to change the original designation of issues jointly proposed by the parties. The scheduling changes in this instance are the result of events relating to the staff review process, not intervenor actions. We perceive no compelling justification for imposing the additional preparation burden this change seemingly would entail, particularly when it is not apparent that the time frame allotted under the revised schedule for the litigation of Group II issues is inadequate 2

The staff has suggested'that an important factor in setting this schedule is the planned October 30, 1999 date

-for issuance of the draft PFS site Safety Evaluation Report (SER). Egg Tr. at 1025-26. Because the etaff will already have taken a position on, and been subject to discovery regarding, the Group I SER-related matters at issue in this proceeding, we see no basis for entailing the nearly two-month delay that would accure awaiting issuance of that document.

l Regarding the applicant's summary disposition schedule, l- we are. cognizant that it may involve an intervenor in

[ simultaneous endeavors -- taking discovery against the staff

and' responding to a dispositive motion. That, however, is a i possibility even under the staff's proposed schedule because there is no stricture on how early a party may move for

. summary disposition.

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w. - l to accommodate all.the issues originally designated in that group. Sag Tr. at 1038-40.

For the' foregoing reasons, it is this twenty-third day I of December 1998,-ORDERED, that:

1. The State's December 1, 1998 motion to extend the informal discovery period is aranted in accordance with the revised general schedule set forth in Attachment A to this l

! order.

l j 2. The general schedule for this proceeding is revised j as set forth.in' Attachment A to this order.

I FOR THE ATOMIC SAF'ETY AND LICENSING BOARD 3 d I kh l G. Paul Bollwerk, III l

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ADMINISTRATIVE JUDGE Rc kville, Maryland l, December 23, 1998 l

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{ Copies of this order were sent this date by Internet i

e-mail transmission to counsel for (1) the applicant PFS; (2) intervenors Skull' Valley Band of Goshute Indians, Ohngo i- Gaudadeh Devia, Confederated Tribes of the Goshute

i. Reservation, Castle Rock Land and Livestock, L.C./ Skull Valley Company, LTD., and the State; (3) petitioner Southern

. Utah Wilderness Alliance; and (4) the staff.

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l ATTACMENT A 1

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a e PRIVATE FUEL STORAGE PROCEEDING GENERAL SCHECULE -- As revised 12/23/98 EVENT GROUP I* CROUP II 2 CROUP III' Informal Discovery Begi.Is -- May 19, 1998 May 19, 1998 May 19, 1998 All Parties Informal Discovery February 28, 1999 February 28, 1999 February 28, 1999 Closes -- All Parties Staff Position on Contentions June 15, 1999 October 15, 1999 DEIS -- October 30, 1999 FEIS -- September 30, 2000 Formal Discovery Begins -- March 1, .999 March 1, 1999 March 1, 1999, except (1)

All Parties DEIS-related discovery against Staff -- March 6, 2000; and (2) FEIS-related discovery against Staf f --

begins on FEIS issuance date Formal Discovery Ends -- All May 28, 1999 May 28, 1999 May 28, 1999 Parties Except Against Staff Formal Discovery Ends -- August 13, 1999 May 15, 2000 DEIS -- May 15, 2000 Against Staff FEIS -- November 30, 2000 Summary Disposition Motions June 28, 1999 March 31, 2000 December 1, 2000 Final Filing Date Summary Disposition Motion July 28, 1999 May 1, 2000 January 2, 2001 Responses Final Filing Date Board Summary Disposition August 30, 1999 May 31, 2000 February 1, 2001 Decision Pre-filed Testimony Suixnitted October 1, 1999 June 30, 2000 March 2, 2001 In Limine Motions Due October 15, 1999 July 14, 2000 March 16, 2001 Hearings (including limited November 1 - December 31, July 31 - September 1, 2000 April 2 - May 31, 2001 appearance sessions as 1999 appropriate)

Findings of Fact February 1, 2000 October 2, 2000 July 2, 2001 (Simultaneous filings)

Findings of Fact Responses March 2, 2000 November 1, 2000 August 1, 2001 (Simultaneous filings)

Initial Decision May 1, 2000 December 31, 2001 October 1, 2001

• The contentions in Group I include Utah B; Utah C; Utah F/ Utah P; Utah G; Utah K/ Castle Reck 6/ Confederated Tribes B*-

Utah M; Utah N; Utah R; Security-A; Security-B; and Security-C.

• The contentions in Group II include Utah E/ Castle Rock 7/ Confederated Tribes F: Utah H; Utah L; Utah S/ Castle Rock 7; Utah GG.

• The contentions in Group III include Utah O/ Castle Rock 8 and 10; Utah T/ Castle Rock 10, 12, and 22; Utah U; Utah V-Utah W; Utah Z; Ut h AA/ Castle Rock 13; Utah DD/ Castle Rock 16; Castle Rock 17; Castle Rock 20; Castle Rock 21; and OCD 0,

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l UNITED STATES OF AMERICA NUCLEAR REGL'LATORY COMMISSION In the Matter of PRIVATE FUEL STORAGE, LLC Docket No.(s) 72-22-ISFSI (Independent Spent Fuel Storage t

Installation)

CERTIFICATE OF SERVICE

< I hereby certify that copies of the foregoing LB M&O (REV'D GENERAL SCHEDULE have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Office of Comission Appellate G. Paul Bo11werk, III, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Administrative Judge l Jerry R. Kline Peter S. Lam 1 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.

l Catherine L. Marco, Esq. Diane Curran, Esq.

Office of the General Counsel Harmon, curran, Spielberg & Eisenberg Mail Stop 15 818 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Comission Washington, DC 20009 l Washington, DC 20555 Martin S. Kaufman, Esq. Joro Walker, Esq.

Atlantic Legal Foundation Land and Water Fund of the Rockies i 205 E. 42nd St. 165 South Main, Suite 1 New York, NY 10017 Salt Lake City, UT 84111 i

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l Docket No.(s)72-22-ISFSI L8 M&O (REV'D GENERAL SCHEDULE Denise Chancellor, Esq.

Assistant Attorney General Jay E. Silberg, Esq. l Utah Attorney General's Office Shaw, Pittman, Potts and Trowbridge i 160 East 300 South, 5th Floor 2300 N Street, NW P.O. Box 140873 Washington, DC 20037 Salt Lake City, UT 84114 l

John Paul Kennedy, Esq. Richard E. Condit, Esq.

Confederated Tribes of the Goshute Land and Water Fund of the Rockies-Reservation and David Pete 2260 Baseline Road, Suite 200 1385 Yale Avenue Boulder, CO 80302 i Salt Lake City, UT 84105 j Clayton J. Parr, Esq. Danny Quintana, Esq.

Castle Rock, et al. Skull Valley Band of Goshute Indians Parr, Waddoups, Brown, Gee & Loveless Danny Quintana & Assocs., P.C.

185 South State Street, Suite 1300 50 West Broadway, Fourth Floor

Salt Lake City, UT 84111 Salt Lake City, UT 84101 l

Richard Wilson Department of Physics Harvard University Cambridge, MA 02138 l l Dated at Rockville, Md. this 23 day of December 1998 - -

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UTdc'yoftheSecretaryoftheCommission

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