ML20198L021

Memorandum & Order (Ruling on Motions to Suspend Proceeding & for Extension of Time to File Contentions).* Orders That State of UT 971001 Motion to Suspend Proceeding & Renotice Application Denied.W/Certificate of Svc.Served on 971017

ML20198L021
Person / Time
Site:	07200022
Issue date:	10/17/1997
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	UTAH, STATE OF
References
CON-#497-18586 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9710240205
Download: ML20198L021 (13)

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UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USHRC ATOMIC SAFETY AND= LICENSING-BOARD.

VI DCT 17 P1 :59 Before Administrative Judges:

G. Paul Bollwerk, III, Chairman OFnCE orsEcm,..;g Dr. Jerry R. Kline ADJUDLs$if OULEIMD 33 ,ND Dr. Peter S. Lam !Ut STAFF l

In the Matter of- Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C.- ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel October 17, 1997 i

-Storage Installation)

SERVED 00il/19W MEMORANDUM AND ORDER (Ruling on Motions to Suspend i Proceeding and for Extension of Time to File Contentions)

Petitioner State of Utah (State) has filed two related motions, both dated: October 1,'1997. In one, the State requests that this proceeding be suspended until (1) a local public document room (LPDR) is established in the area of-the independent spent fuel storage installation (ISFSI) proposed by applicant Private Fuel Storage, L.L.C. (PFS);

and (2) ' PFS has filed a "substantially _ complete" application, at which timeLthis proceeding should be renoticed to accord an additional opportunity to request a hearing. In the second me: Jon, the State asks the Licensing Board-to extend by forty-five days, or until December 8, 1997, the date for-filing a supplement to'its hearing request / intervention. petition, which would include a list of 9710240205 971017 q PDR ADOCK 07200022 c eD g$Q V

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contentions and supporting bases. If granted, this extension also would require that the Board reschedule a prehearing conference and site visit now being planned for the week of November 17, 1997.

Petitioners Castle Rock Land and Livestock, L.C., Skull Valley Company, LTD., and Ensign Ranches of Utah, L.C.

(Castle Rock, et al.) and petitioner Ohngo Gaudadeh Devia (OGD) have filed responses joining and supporting the State's requests. The State also has represented that petitioners Confederated Tribes of the Goshute Reservation and David Pete (Confederated Tribes /Pete) support both ,

motions. Applicant PFS and petitioner Skull Valley Band of Goshute Indians (Skull Valley Band), which generally supports the PFS applicat;.on, oppose the suspension /renoticing motio'.t. .Both hlso oppose the extension motion, with PFS suggesting that any extension for filing contentions should be limited to one week. The NRC staff opposes the suspension /renoticing motion, but-does not object to a thirty-day extension of time for filing contentions.

For the reasons set forth below, we deny the State of Utah's suspension /renoticing motion, but grant, in part, its request for an extension of the date for filing hearing I

request / intervention petition supplements, including lists s

of contentions with supporting bases.

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I. Motion to Suspend.and Renotice Proceeding The State's suspension /renoticing motion has two prongs. The first is its assertion that suspension and renoticing is warranted because the lack of an established LPDR has prevented prospective intervenors from having access to those documents that are necessary for them to participate meaningfully in the proceeding, including filing a hearing request / intervention petition. The other is that, because of unavailable documents -- including storage cask proprietary documentation -- and deficiencies in the PFS application -- including a failure to address financial qualifications, decommissioning, and construction costs or to provide adequate emergency response or quality assurance plans -- the State and other prospective intervenors have been severely prejudiced in developing their contentions or will be forced to bear the unfair burden of having to supplement their contentions. Sag-[ State's] Motion-to-Suspend Licensing Proceedings Pending Establishment of a

[LPDR] and Applicant's Submission of a Substantially Complete Application, and Request for Re-notice of Construction Permit / Operating License Application (Oct. 1, 1997) at 6-14 [ hereinafter Suspension Motion). Assuming, for-present purposes, the Board has the power to do what the

State asks, we find none of its proffered reasons sufficient to justify suspending and then renoticing this proceei'.ng.

With its publication in the Federal Reoister, 62 Fed.

Reg 41,099 (1997), the otaff's July 21, 1997 declaration that it was considering the PFS application and that a l hearing on the application could be requested put the general public on notice that (1) the PFS application was-available at the Commission's public document room in Washington, D.C.; and (2) those who wanted to request a hearing regarding that application needed to make an effort to gather the information necessary to file a timely hearing request / intervention petition. As is evident from the response of the State and the other petitioners opposing the PFS application, there were entitie" and individuals who were able to act on that notice-and timely provide information to address the agency's intervention requirements. Other than the State's general expression of concern that there may be individuals or groups who were unable to participate, we have no evidence that the lack of an LPDR has affected anyone's ability to file a hearing 1

The agency case law the State cites in support of its renoticing request does indicate a presiding officer has the authority to renotice a proceeding in cases that have become

" stale." Seg Rochester Gas & Electric Co. (R.E. Ginna Nuclear Plant, Unit 1), LBP-83-73, 18 NRC 1231, 1233-36 (1983). It does not, however, provide any direct support for the State's assertion the Board has the authority to renotice this relatively " fresh" proceeding.

petition that meets-the agency's initial requirements that each petitioner set forth the basis for its standing and describe the aspects of the proceeding (i.e., the general subjects) about which the petitioner is concerned.

So too, we do not find the State's assertions about the sufficiency of the PFS application or the supporting documentation provide good cause for suspending and renoticing this proceeding. The adequacy of the PFS application is the overarching issue in this proceeding.

If the record in this proceeding as it is developed through

litigation of any admissible contentions establishes, as the State maintains, that the-PFS application is inadequate to support issuance of the license PFS has requested, then the applica ].on must be denied. In their contentions, the State and the other petitioners who contest the PFS application have t'te opportunity to specify what those deficiencies are and tl. basis for their belief that those purported shortcomings are, indeed, deficiencies. See 10 C.F.R.

S 2.714 (b) (2) (iii) (petitioner who believes an application fails to contain information on a relevant matter as

. required by law should identify each failure and the supporting reasons for its belief); see also New Encland Power Co. (NEP, Units 1 and 2), LBP-78-8, 7 NRC 271, 281 (1978).

The State's concern about its present lack of access to some information likewiue is not a reason for the Board to

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suspend this proceeding. The Commission's rules of practice-contemplate that during the course of a proceeding, additional documentation may becomes available to the participants that raises additional issues that are 4

relevant to the question of application adequacy. In such instances, a participant can request that late-filed i

contentions be admitted to consider those 19aues. Egg id.

5 2. 714 (a) (3) ; see also id. S 2.714 (b) (2) (ii) (although

. National Environmental Policy Act contentions shall be baseo on applicant's environmental report, petitioner can amend or file new contentions based on staff draft or final

environmental impact statement or assessment); 54 Fed. Reg.

33,168, 33,172 (1989). This method of proceeding may well impart some " inefficiencies" into the_ adjudicatory process.

Nonetheless, as the Commission has made clear "intervenors ere expected to raise issues as early as possible. To the

extent that this leads to-contentions that are superseded by j the subsequent lasuance of licensing-related documents, those changes can be dealt with by either modifying or disposing of the superseded contentions." Duke Power Co.

f.

(Catawaba Nuclear Station, Units 1 and 2), CLI-83-19,-17 NRC c 1041, 1050 (1983).

We see no reason to-suspend or renotice this proceeding. We thus deny the State's request for those

-actions.

II. Motion to Extend Time to File Contentions In support of its motion for an extension of time to file its contentions, the State relies upon many of the same factors that it cited in support of its suspension /renoticing request. One that appears to be a facially relevant consideration, at least in terms of the ce.se law cited by the State, is the impact that lack of access to an LPDR can have on a petitioner's ability to craft-contentions. See Suspension Motion at 7 (citing Combustion Encineerino, Inc. (Hematite Fuel Fabrication Facility), LBP-89-23, 30 NRC 140, 144-45 (1989)); ggg also Georaia Institute of Technoloov (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 296-98, aff'd,-CLI-95-12, 42 NRC 111 (1995). This consideration has less impact in this instance, however, because (1) the State and petitioners Castle Rock, et al., apparently have had copies of the application since late June and mid-July, respectively, and OGD was civen access to a copy of the application in early September; and (2) notwithstanding the lack of an officially designed NRC LPDR, since mid-August copies of the PFS application were available for public inspection at libraries in Tooele and Salt Lake City, Utah, some twenty-five and sixty miles, respectively, from the l

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proposed ISFSI site.2 Egg Applicant's Answer to the (State's] Motion to Suspend Proceedings and Re-notice i Opportunity for Hearing (Oct. 14, 1997) at 3-5.

Of more concern to the Board is the State's declarations about its need to provide its experts with additional time to review the application. Given the length and complexity of the original application (which is in excess of 2000 pages) and the State's more recent acquisition of some-1500 additional pages of technical calculations that support the application, we agree with the staff that an extension for filing contentions is J

warranted.2 We also agree that a thirty-day extension is appropriate and that there should be an additional period of 2

In its response to the State's suspension motion, the staff indicates that " shortly" an LPDR will be established in Salt Lake City, Utah. See NRC Staff's Response to (State's] Motion to Suspend Licensing Proceedings and to Require Renotice of the Application (Oct. 10, 1997) at 6 j n.10. The Board would hope this can be accomplished by the end of this month.

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l In its response to the State's extension motion

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(which the Board notes apparently was not provided to us in

< accordance with our October 7, 1997 order), petitioner OGD

. asserts it is having a difficult time obtaining a copy of

the PFS application and the additional 1500 pages of computations because of its counsel's out of state location and the expense involved. Sgg OGD's Response to (the State's]J Motion for Extension of Time to File Contentions (Oct. 14, 1997) at unnumbered pp. 1-3. The Board would hope that counsel for GGD and PFS promptly can reach some accommodation that will allow OGD reasonable access to documents PFS has provided to the other petitioners.

Alternatively, OGD may wish to consult with counsel for the other petitioners to see if it can obtain those documents from them or try utilizing the Freedom of Information Act, which nas fee waiver provisions, ggg 10 C.F.R. S 9.41.

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time allotted for responses to any supplements to the pending hearing requests / intervention petitions. A revised schedule to this effect is set forth below.

III. Additional Scheduling Matters Besides ruling on the pending State motions, the Board wishes to take this opportunity to address several other matters relating to the scheduling of this proceeding.

A. Timing of the Staff's Safety and Environmental Review Documents The Board notes that in the environmental report that accompanies the PFS application, the applicant has set out a schedule that begins access road and facility construction in January 2000. See Private Fuel Storage, L.L.C.,

Environmental Report (for] Private Fuel Storage Facility at 1.3-1 (rev. O June 1997). In response to the Board's inquiry, however, the staff has declared that its draft and final safety evaluation reports (SER) regarding the application and its draft and final environmental impact statements (EIS) regarding the FFS proposal will not be completed for some two to three years. See NRC Staff's Status Report and Response to Requests for Hearing and Petitions to Intervene Filed by (1) [ State], (2) [ Skull Valley Band], (3) [OGD], and (4) (Castle Rock, et al.] (Oct.

1, 1997) at 5. Thus, at least as it is currently presented, the staff's re'riew of this application will extend as much

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as-a year beyond the licensee's anticipated starting date for facility construction.

This raises a questian about the Board's authority to issue a final initial decision on any safety, environmental, or other issues that may be admitted in the absence of these staff safety and environmental documents, whether in draft or final form. To aid it in setting additional schedules in this proceeding, the Board requests that the applicant and the staff address this question of the Board's authority.

In this regard, they should discuss vly potentially relevant regulatory provisions, such as 10 C.F.R. SS 51.100 .104; id.

S 72.40(b), and any analogous case authority from reactor licensing or other proceedings that abed light on this matter. Other participants will then 'xe accorded an opportunity to respond to the staff ,and applicant filings.

A schedule for addressing this issue also is set forth below.

B. Prehearing Conference and Site Visit With our partial grant of the State's request for an extension of time-for filing contentions, the prehearing conference and-site visit that were being arranged for the week of November 17,.1997, will have to be rescheduled to early 1998. The participants will be advised of the new schedule. The Board continues to enticipate that the prehearing conterence will last at ler.st two days. The Board also anticipates that any site visit can be conducted a

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in half a day, but inviten comments from the applicant or any other participants on the accuracy of this estimate.

S l For the foregoing reasons, it is this seventeenth day of October 1957, ORDERED, that:

1. The State of Utah's October 1, 1997 motion to suspend proceeding and to renotice application is denied.

2. The State of Utan's October 1, 1997 motion for an 1 extension of time to file hearing request / intervention petition supplements, including contention lists, is granted

, in part in that participant hear).ng request / intervention petition supplements shall be filed on or before Monday,

' November 24, 1997.

3. Responses to any hearing request / intervention petition supplements shall be filed on or before Monday.

December 22, 1997.

4. Staff and applicant pleadings addressing the question posed in paragraph III.A above shall be filed on or

.before Tnesday. December 30, 1997, 1

5.- Responses to the staff and applicant pleadings i addressing the question posed in paragraph III.A above shall be filed on or before Wednesdt,v. Januarv 7, 1997.

6, The filings provided for in this memorandum and order'shall be served on the Board, the Office of the Secretary, and counsel fer the other participants by

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• r l facsimile transmission, e-mail, or other means that will ensure receipt by close of business (4 :30 p.m. EST) on the final day of the filing period. Sgg Licensing Board Memorandum and Order (Initial Prehearing Jrder) (Sept. 23, 1997) at 5-6 (unpublished).

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FOR THE ATOMIC SAFETY add LICENSIN;; BOARD *

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G. Paul Collwerk, III

-ADMINISTRATIVE JUDGE Rockville, Maryland i October 17, 1997 i

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• Copies of this memorar.dum and order were sent this date to counsel for the applicant PFS and to counsel for petitioners Skull Valley Band, OGD, Confederated Tribes /Pete, Castle Rock, et al., and the State by Internet e-mail transmission; and to counsel for the NRC staff by e-mail through the agency's wide area network system.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Mattei of PRIVATE FUEL STORAGE, LLC Docket No.(s) 72-22-ISFSI (Independent Spent Fuel Storage Installation) i CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEM0 RULING ON STATE MOTION 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 Bollwerk, III, Chairman Adjudication Atomic Safety and Licensing Board U.S. Nuclear Ragulatory Conc 1ssion Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Peter S. Lan; Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Naclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq Catherine L. Marco, Esq. Olane Curran, Esq.

Of fice of the General Counsel Harmon, Curran & Spielberg Mail Stop 15 818 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Comission Washington, DC 20009 Washington, DC 20555 Denise thancellor, Esq.

Assistant Attorney General Jay E. Silberg, Esq.

Utah Attcrney General's Office Shaw, Pittman, Potts and Trowbridge 160 East 300 South, 5th Floor 2300 N Street, NW P.O. Box 140873 Washington, DC 20037 Salt Lake City, UT 84114

4 Docket No.(s)72-22-ISFSI LB MEMO RULING ON STATE MOTION John Paul Kennedy, Esq. Jean Belille, Esq.

, Confederated Tribes of the Goshute Ohngo Gaudadeh Devia Reservation and David Pete Land and Water Fund of the Rockies 1385 Yale Avenue 2260 Baseline Road, Suite 200.

Salt Lake City, UT 84105 Boulder, CO 80302 Clayton J. Parr, Esq.

Castle Rock, et- al. Danny Quintana, Esq.

Skull Valley Band of Goshute Indians Kimball, Parr, Waddoups, Brown & Gee 185 S. State St., Suite 1300 Danny Quintana & Assocs., P.C.

P.O. Box 11019 50 West Broadway, Fourth Floor Salt Lake City, UT 84147 Salt Lake City, UT 84101 Dated at Rockville, Md. this 17 day of October 1997 Dffice of the etary of the Commission I

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