ML20198N222
| ML20198N222 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 12/29/1998 |
| From: | Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#199-19860 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9901060057 | |
| Download: ML20198N222 (12) | |
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[kd8 DOCKETED USNRC
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ADJUs %,Y' IMF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 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 APPLICANT'S ANSWER TO STATE OF UTAll'S MOTION TO AMEND SECURITY CONTENTIONS Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") hereby submits its answer to the State of Utah's (" State")" Motion to Amend Security Contentions"(" State Mot.") dated December 17,1998. PFS submits that the State's motion should be denied, in that (1) the State has not justified its late tiling of new contention materials, and (2) the State's contentions as amended advocate stricter requirements than those imposed by the Commission's regulations.
I.
FACTUAL BACKGROUND j
On January 3,1998, the State of Utah timely filed its security contentions in ac-corcance with the Board's Order of December 17,1997, which required security conten-tions to be filed no later than January 5,1998. In contention Security-C, the State raised i
two principal issues: "(1) the authority of the Tooele County Sheriffs Office to provide law enforcement assistance to incidents at the Applicant's independent spent fuel storage _
installation ("lSFSI"); and (2) t1.- ime required for.Tooele County Sheriff s office to re-spond to incidents at the ISFSI." See State Mot. at 1. In response to the first issue, at the 9901060057 981229 i
PDR ADOCK 07200022 C
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Jtme 17,1998 preheaung conference PFS provided to the Board and to counsel for the State and the NIfC staff copies of the June 3,1997 " Cooperative Law Enforcement Agreement"("CLEA") between Tooele County, the Bureau ofIndian Affairs ("BIA"),
and the Skull Valley Band of Goshute Indians under which Tooele County has agreed to provide law enforcement services for the Skull Valley Reservation. See Prehearing Conf.
e Trans, at S-15.'
in its Memorandum a.,d Order of June 29,1998, the Board rejected the State's claim oflack of Tooele County jurisdiction and law enforcement authority on the Skull Valley Reservation and related claims raised by the State. The Board concluded that "a cooperative law enforcement agreement has been shown to exist between the LLEA, the Bureau ofIndian Affairs..., and the Skull Valley dand" and determined that "nothing on the face of the cooperative agreement gives us cause to question its validity as it pro-vides such [ law enforcement] jurisdiction on the Skull Valley Band's reservation for the designated LLEA." Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage In-stallation), LBP-98-13,47 NRC 360,370 and n. 9 (1998).
On July 10,1998, the State filed a Motion for Reconsideration of the Board's ruling. In its motion, the State challenged the validity of the CLEA on a procedural basis, claiming that Tooele County had not passed an appropriate resolution to authorize the CLEA. For support, the State referred to an inquiry that it had made to the Tooele County Clerk's Office conceming the CLEA. See State Recon. Mot. at 2 and Exh. 3.
' PFS forrnally filed the CLEA with the Board by cover letter frorn Jay Silberg dated June 24,1998.
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4 On August 5,1998, the Board granted the State's request for reconsideration, stating that:
[T]he State's claims regarding the county's failure to adopt the June 1997 agreement properly under the terms of Utah Code Annotated section Il-13-5 pose a legitimate question about whether the necessary documented liason has, in fact, been established in accordance with section 73.51(d)(6) of the NRC's regulations.
Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installationi, LBP-98-17, 48 NRC 69,75 (1998) (emphasis added). The Ibard did not, however. disturb its previ-ous conclusion that the substance of the CLEA (as opposed to the procedure used to authorize it) was valid to meet the requirements of 10 C.F.R. 73.51('d)(6) to have a
"[d]ocumented liaison with a designated response force or {LLEA]." Rather, the Board clearly stated that (id. at 75-76):
Our ruling here means that the State may pursue ns Security-C claim of regulatory noncompliance that the Tooeie County sheriff's office cannot act as the designated LLEA because the alleged failure to comply with the requirements of Utah Code Annotated section i1-13-5 regarding approval of the June 1997 agreement arguably would deprive the sheriff's otrice of law enforcement authority on the Skull Valley Band reservation.
On October 14,1998, almost four months after being provided a copy of the CLEA at the June 17,1998 prehearing conference, the State wrote a letter to Tooele County inquiring about the scope and nature of the County's obligations under the CLEA. See State Mot., Exh. 2 at 1 (Letter from D. Nielson to T. Hunsaker dated October 14,1998). On December 2,1998, the Tooele County hrney sent a one-page letter re-sponding to the State's letter. See State Mot., Exh. 3 at 1 (Letter from D. Ahlstrom to D.
Nielson dated December 2,1998). On December 17,1998, the State filed its mation to l
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amend the security contentions requesting to add "an additional legal challenge to the Applicant's ability to comply with 10 CFR 73.51(d)(6) and Part 73, Appendix C(d)(3')"
based on the substance of the CLEA, claiming that the County Attorney's letter " clearly establishes that Tooele County will not provide law enforcement assistance to the [PFS ISFSI) under the CLEA." See State Mot. at 5-6.
II.
THE STATE'S MOTION IS UNJUSTIFIABLY LATE The Statc': motion to amend its security contentions must be denied because it is unjustifiably late. Being late, the State must demonstrate that a balancing of the five factors set forth in 10 C.F.R. s 2.714(a)(1)(i)-(v) support accepting its proposed amend-t ment ofits security contentions. Private Fuet Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,167,207-09 (1998). The State has not l
l-done so here, so the motion to amend its contentions must be denied.
'A.
The State Lacks Good Cause i
l The first and most important factor is good cause for lateness.10 C.F.R. s 2.714(a)(1)(i). The State lacks good cause because the initiation of the process which re-sulted in the County Attomey's letter rested solely with the State and it waited too long to do so. The State was given a copy of the CLEA during the prehearing conference on p
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. June 17,1998. Yet the State failed to send its letter to Tooele County regarding the scope and extent of the CLEA (and apparently made no other inquiry concerning its substance) l-until October 14,1997, almost four months afler the State had received a copy of the j
I CLEA. The State makes no attempt whatsoever to justify this four-month delav. In this regard, the State did make an inquiry to Tooele County in early July,1998 regarding the 4
t procedure by which the CLEA was adopted in support ofits July 10,1998 Motion for Reconsideration."which focused on the CLEA. _See State Recon. Mot. at 2 and Esh 3.
The State has provided no reason why it failed to submit its inquiry concerning the sub-stance of the CLEA during this same timeframe.
Rather, the State's good cause argument focuses solely on the alleged reasonable-ness ofits actions upon receipt of the County Attorney's Decembe-2,1998 letter. The State claims that it has good cause for late-filing "because [it] only received the new in-formation from the Tooele County Attomey on December 4,1998" and acted promptly thereafter to file its motion. State Mot. at 7. The State's receipt of the County Attorney's letter is not, however, the right point in time from which to evaluate the timeliness of this motion. Even assuming that the State has filed its motion within a reasonable time after receiving a response from the Tooele County Attorney, it would not excuse the State's four-month delay in making its inquiry to the County. If the State had sent its letter of inquiry to Tooele County in a timely manner after receiving the CLEA, the State could have filed the present motion months earlier.
The State does not give any explanation for this four-month delay. See State Mot.
at 7. The Board determined that the State lacked good cause for filing Utah Contention EE late when it was filed after an unexplained one-mcath delay. LBP-98-7,47 NRC at 208. ' Likewise, the Board should determine that the State lacks good cause for its lateness here given its unexplained delay in making its inquiry to the County. This is particularly 5
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.true given the brevity and simplicity of the State's October 14,1998 letter to the County.2.
Where good cause is lacking, a compelling showing must be made with respect to the
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. other four factors, which. as discussed next, the State has not done here.
H.
The State Fails to Make a Compelling Showing on the Other Factors I
The second and fourth factors, which concern the protection of the petitioner's as-serted interest by other means or parties, are to be accorded less weight than the third and fifth factors. LBP-98-7,47 NRC at 208. On these factors, the State simply asserts that it "has n_o means, other than this proceeding, to protect its interests in the issues identified" in its motion. State Mot. at 7 (emphasis added). The State's bald assertion is devoid of any discussion and is wholly unsupported. The State's claim that it has absolutely no means other than this proceeding by which to protect its interest in assuring law enforce-ment response to the iSFSI seems surprising and counterintuitive. It would seem likely that the State has one or more other means to protect its law enforcement interests in this matter through State legislative or administrative means. For example, the State could Attempt to enter directly into a law enforcement agreement with the Skull Valley Band or FFS. Because the State has failed to support its bald assertion, this factor does not favor granting the State's motion.
The third factor is whether the petitioner will make a strong contribution to the re-cord. To satisfy this factor, a petitioner should,"with as much particularity as possible,
- See Private Fuel Storage (Independent Spent Fuel Storage Facility), LBP-98-29,48 NRC _, _, slip op.
at 12 n.4 (Nov. 30,1998)(finding of good cause for the delay between the availability of the information and the filing depends on the " scope and complexity of the 'new' information").
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identify its proposed witnesses, and summarize their proposed testimony." LBP-98-7,47 NRC at 208 (citations omitted). The State completely fails to satisfy this standard, of-fering only a bald assertion that "the State's participation in this proceeding can reasona-bly be expected to assist in developing a sound record relating to legal issues regarding local law enforcement authority." State Mot. at 7. The State's proposed conten+ ion con-cerns the scope and extent of the CLEA contract between Tooele County, BI A, and the Skull Valley Band, a matter of contract interpretation. The State fails to identify those is-sues concerning the scope and the extent of the CLEA on which it would assist in devel-oping a sound record, fails to identify any witnesses that it would call on such issues, and fails to identify or summarize the proposed testimony of any such witnesses. Therefore, the State has utterly failed to show that it will make a strong contribution to the record.
See LBP-98-29,48 NRC at
, slip op. at 13 (decision on Low Rail Contentions).' Ac-cordingly, this factor strongly weighs against granting the State's motion.
The fifth factor concerns the extent to which the petitioner's participation will broaden or delay the proceeding. The current security contentions concern: 1) whether the CLEA was adopted pursuant to "an appropriate resolution" and 2) the response time of th: LLEA. See LBP-98-17,48 NRC at 74,76-77. While the current contention con-cerns the procedure used to authorize the CLEA, the State's amended contentions would
' With respect to its Low Rail Contention concerning wildfires. the State had submitted an af6 davit from a forestry ecosy tem manager in support of the contention and asserted that other, unnamed experts would be available to support its position on the contention. The Board found that this proffer fell" considerably short of the specificity regarding witness identiGcation and testimony summaries the Commission has indi-a 7
I also require interpreting the substance of the CLEA itself as a contractual document.
Adding this new" contract issue would broaden the security contentions currently in the proceeding. Broadening the issues to be considered in the proceeding will, of necessity, broaden the scope of discovery and the hearing itself, and thereby extend the duration of the proceeding. Hence, this factor also weighs against accepting the State's motion.
In sum, the remaining four factors weighed together militate against granting the State's late-filed motion, and clearly, therefore, do not make the compelling showing re-quired to overcome the State's lack of good cause.
IIL THE STATE'S NEW L.EGAL CHALLENGE MUST BE REJECTED The State's proposed new legal challenge which it seeks to incorporate as part of contentions Security-A, B, and C must be rejected besause it advocates stricter require-ments than those imposed by NRC regulations and therefore raises issues not material to granting or denial of the license.* The State's new challenge focuses on the substance of the CLEA, specifically the scope and extent of the law enforcement services to be pro-vided by Tooele County under the CLEA. State Mot. at 4-6. The State does not rely in any respect on the actual provisions of the CLEA but rather points to the Tooele County Attorney's letter of December 2,1998 responding to the State's October 14,1998 inquiry, cated is needed if this factor is to provide strong support for admissibility." Id, The State's bald assertion here is far less than its proffer on the Low Rail wildfire contention which the Board found inadequate.
The State's motion also requests that contention Security-C be specifice.'ly amended to cite 10 C.F.R. }
d 73.51(d)(6). See State Mot. at 5 n. 2. The Board, however, has already explicitly addressed and referred to 10 C.F.R. 73.51(d)(6)in its both its initial June 29,1998 Order and its subsequent August 5,1998 Order on the State's Motion for Reconsideration. M LBP-98-13,47 NRC at 369; LBP-98-17,48 NRC at 75.
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4 which the State broadly claims " clearly establishes that Tooele County will not provide law enforcement" assistance to the [PFS ISF.Sl] under the CLEA." Id. at 6. A reading of this letter -- which is the sole basis for the State's motion -- shows that it is actually con-5 1
lined to issues which are beyond the requirements imposed by NRC regulations.
The Tooele County Attorney's letter addresses whether Tooele County is obli-gated to provide ongoing law enforcement protection, specifically patrols of the PFSF
. site, under the CLEA. See State Mot. Exh. 3.5 Such ongoing protection or patrols by the
- LLEA is not an NRC licensing requirement. NRC's regulations require that
[d]ocumented liaison with a designated response force or a local law en-forcement agency (LLEA) must be established to permit timely response to unauthorized penetration or activities.
10 C.F.R. s 73.51(d)(6)(emphasis added). The regulation addresses whether an LLEA
.will respond to unauthorized activities that have occurred at an ISFSl? The regulations do not require an LLEA to patrol or to provide preventive related protection such as that referred to in the County Attomey's letter. See. generally,10 C.F.R. Q 73.51.'
Recause the Board has already addressed this issue, PFS does not believe that the contention needs to be amended and opposes the State's request to amend this contention.
' The Tooele County Attorney's letter also notes that "the county has not yet entered into any agreement that has any bearing on locating the PFS storage facility on the reservation." State Mot. Exh. 3. PFS agrees that it has not yet entered into a specific agreement with Tooele County but such is not relevant to
' the scope and extent of the s'ubstance of the CLEA, the issue presented by the State here.
- This interpretation is further supported by the Standard Review Plan, ge NUREG 1619 at 18 ("desig-nated response force,""if the.. response force cannot respond"), and the preceding staff guidance docu-ment, see NUREG 1497 at 5 (" documented response arrangements,"" designated response force,""esti-mated response times.").,
' The difference between 1) patrol and protect, and 2) respond is notjust semantic. The definition of
" protect" is "to keep from being... attacked" or to " guard." American tieritage Co'lege Dictionary at
- 1099 (3d. ed.1997); To protect requires actions before-hand to prevent an attack from occurring. NRC L
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Thus, the State attempts to challenge the PFSF Physical Protection Plan on something whicWthe NRC's regulations do not require -- regular patrols and protection of an ISFSI by the LLEA. The State therefore " advocate [s] stricter requirements than those imposed by the regulations" and its new challenge "is an impermissible attack on the Commission's rules" which must be rejected. Public Service Co. of New Hampshire (Se-abrook Station. Units 1 and 2), LBP-82-106,16 NRC 1649,1656 (1982).
IV.
CONCLUSION For the foregoing reasons, PFS respectfully submits that the State's motion to amend its security contentions must be denied.
Respectfully submitted,
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Jay E. Silberg Ernest L. Blake, Jr.
Paul A. Gaukler SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, DC 20037 (202\\ 663-8000 Dated: December 29,1998 Counsel for Private Fuel Storage L.L.C.
regulations do not require the LLEA to prevent unauthorized penetrations or activities. See 10 C.F.R. J 73.5 )(d)(6)(" response to unauthorized penetrations or activities.") The definition of" patrol" is to "mos[ej about an area... for purposes of observation, inspection, or security." American Heritage College Dic, tionary at 1002. NRC regulations also do not require the LLEA to perform routine patrols of an ISFSt.
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.4 DOCKETED 1
USNRC UNITED STATES OF AMERICA 3 JAN -4 A10:13 NUCLEAR REGULATORY COMMISSION OFFg,
U-g Ruu e,
Before the Atomic Safety and Licensing Board ADJUFS.*
- 5TM;F 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 Answer to State of Utah's Motion to Amend Security Contentions" were served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by U.S. mail, first class, postage prepaid, this 29th day of De-cember 1998.
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 i
Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GPB9nrc. gov e-mail: JRK2@nrc. gov Dr. Peter S. Lam -
- Adjudicatory File j
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
- e-mail: PSL6nrc. gov 4
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!: i Catherine L'.-Marco, Esq.
Charles J. Haughney Sherwin E. Turk, Esq.
Acting Director, Spent Fuel Project Office Oflice of the General Counsel Otlice of Nuclear Material Safety and
- Mail Stop O-15 &l8 -
Safeguards
' U.S. Nuclear Regulatory Commission-U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 i
.'e-mail: pfscase@nrc. gov Denise Chancellor, Esq.
Joro Walker, Esq.
<.itant Attorney General Land and Water Fund of the Rockies t
Attorney General's Office 165 South Main, Suite 1
. iW East 300 South,5* Floor Salt Lake City, UT 84111 P.O. Box 140873 e-mail: joro61@inconnect.com Salt Lake City, Utah 84114-0873 e-mail: dchancel@ state.UT.US l
L John Paul Kennedy, Sr., Esq.
Richard E. Condit, Esq.
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Confederated Tribes of the Goshute.
Land and Water Fund of the Rockies Reservation and David Pete 2260 Baseline Road, Suite'200 l
1385 Yale Avenue.
boulder,CO 80302
' Salt Lake City, Utah 84105 '
e-mail: reondit@lawfund.org e-maili-john @kennedys.org.
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' Clayton J. Parr, Esq.
Danny Quintana, Esq.
Castle Rock, et'al.
Skull Valley Band of Goshute Indians L
Parr, Waddoups, Brown, Gee & I oveless Danny Quintana & Associates, P.C.
l 185 S. State Street, Suite 1300 50 West Broadway, Fourth Floor i
P.O. Box 11019 Salt Lake City, Utah 84101 L
Salt Lake City, Utah 84147-0019 e-mail: quintana @xmission.com e-mail: karenj@pwlaw.com E
. Diane Curran, Esq.
Office of the Secretary Harmon, Curran, Spielberg &
U.S. Nuclear Regulatory Commission
- Eisenberg, L.L.P.
Washington, D.C. 20555-0001 2001 S Street, N.W.
Atter: tion! Rulemakings and Adjudications r
L Wathington, D.C. 20009 Staff b
e-mail:Deurran.HCSE@zzapp.org e-mail: HEARINGDOCKET@NRC. GOV (Original and two copies) j-
- By U.S. mail only Paul A. GaukTr' p
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Documcot #:696939 v.2
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