ML20199D471
| ML20199D471 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/15/1999 |
| From: | Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#199-19909 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9901200113 | |
| Download: ML20199D471 (17) | |
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DOCKETED Janua'fiki999 r
UNITED STATES OF AMERICA m M W P3 3 NUCLEAR REGULATORY COMMISSION OFi f
- 9 Before the Atomic Safety and Licensing Board g y
In the Mat'ter 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 REPLY TO STATE OF UTAll'S RESPONSE TO CASTLE ROCK'S NOTICE OF WITHDRAWAL i
Pursuant to the Atomic Safety and Licensing Board's Order (Schedule for Replies to Responses to Notice of Withdrawal) of January 7,1999, Applicant Private Fuel Stor-age L.L.C. (" Applicant" or "PFS") hereby submits its reply to the State of Utah's
(" State") response' to the notice of withdrawal filed by Castle Rock Land and Livestock, L.C. and Skull Valley Company, Ltd. (collectively " Castle Rock").2 PFS respectfully i
submits that the Board should reject the State's belated attempts to adopt Castle Rock's contentions and should promptly dismiss all admitted contentions sponsored solely by Castle Rock -including those portions of the admitted contentions sponsored solely by Castle Rock and consolidated by the Board with the contentions of other intervenors.
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' " State of Utah's Response to Castle Rock's Notice of Withdrawal," dated January 5,1999 (hereinafter i
" State Resp."). PFS also filed a response to the notice," Applicant's Response to Notice of Withdrawal of Castle Rock Land and Livestock, L.C. and Skull Valley Company, Ltd.," dated January 5,1999 (hereinaf-ter"PFS Resp").
2 " Notice of Withdrawal of Castle Rock Land and Livestock, L.C. and Skull Valley Com'pany, Ltd.,". dated December 21,1998 (hereinafter" Notice of Withdrawal").
j 9901200113 990115 PDR ADOCK 07200022 PDR
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No Justification for Late Readmission of Unconsolidated Contentions
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l The State's attempt to obtain the readmission of two of the three contentions i
sponsored solely by Castle Rock - Castle Rock 17 (Inadequate Consideration of Land Impacts) and Castle Rock 20 (Selection of Road or Rail Access to PFSF Site)- must be t
denied. As the State acknowledges, any intervenors that wish to adopt the contentions of a withdrawing intervenor-which otherwise would be dismissed - must first satisfy the late-filed contention standards of 10 C.F.R. { 2.714(a)(1). State Resp. at 4 (citing, ge,
Houston Lighting & Power Company (South Texas Project, Units I and 2), ALAB-799, 21 NRC 360 (1985)). The State has not done so here and therefore its attempt to adopt Castle Rock 17 and 20 must be denied and both contentions must be dismissed.
l As stated by PFS in its response, the State lacks good cause for the late adoption
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of Castle Rock's contentions in that it has not shown that it had an " independent con-cern," at the outset of the proceeding, about the matters in the contentions. South Texas, l
ALAB-799,21 NRC at 383-84 & n.106. Castle Rock filed its contentions more than one a
year ago and the State did not promptly express a concern about any of the issues spon-l l
sored solely by Castle Rock, ;aciuding Castle Rock 17 and 20. Although the State sum-marily did seek to incorporate Castle Rock's contentions by reference one month after the j
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j contention filing deadline, the Board rejected the State's attempt because it had failed to address at all the " late-filing factors" of 10 C.F.R. f 2.714(a)(1). Private Fuel Storage,
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L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,163,182 (1998). Nowhere in its original co'ntentions or in its regiiest to incorporate Castle Rock's
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contentions did the State ever raise the grave State interests which it now claims for the first time are implicated by Castle Rock 17 and 20.
The sole basis for good cause now advanced by the State at this late date for its i
belated adoption of Castle Rock 17 and 20 is that Castle Rock's notice of withdrawal was
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the first " formal notice" received by the State that Castle Rock would not " vigorously
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pursue" the issues it had raised. State Resp. at 5,1I (emphasis added). The State's ar-gument is completely devoid of citation to any legal authority - for good reason - be-cause there is absolutely none. Indeed, this identical argument was made in South Texas i
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and rejected there by the Appeal Board. S_ee ALAB-799,21 NRC at 382-84 (rejecting l
adoption of contentions by remaining intervenor claiming that it had " trusted" the with-drawing intervenor "to vigorously pursue them") (emphasis added).
Moreover, the same argument was rejected by the Commission in Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12,28 l
NRC 605 (1988). In that case, a petitioner (which had originally been admitted but sub-l sequently withdrew as a party) sought to re-intervene subsequent to settlement, claiming i
that it had reasonably assumed that the remaining intervenor "would diligently prosecute
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L the proceeding" against the applicant. g at 608. Although accepting the petitioner's re-1:
l liance as " reasonable"(id. at n.2), the Commission went on to hold that a " party may not i
demonstrate ' good cause' for late intervention by attempting to substitute itself for an-t other party that has withdrawn from the proceeding." g at 609. "[E]ach party must l
demonstrate that it is entitled to intervene on its own merits. Any previous reliance-i l
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however misplaced - on another party to assert its interests does not in and ofitself con-stitute sufficient good cause tojustify late intervention." R at 610.
In so holding, the Commission cited with approval Gulf States Utilities Company (River Bend Station Units 1 and 2), ALAB-444,6 NRC 760 (1977). In that case, the Ap.
peal Board rejected the Union of Concerned Scientists' ("UCS") attempt to replace the State of Louisiana after the State had withdrawn from the proceeding in which UCS claimed : hat it had been " lulled into inaction" by the State's previous participation. E at 796. The Commission in Comanche Peak summarized the Appeal Board's reasoning for rejecting the UCS petition as follows:
[T]he belated petitioners assumed the risk that the previous litigant's degree ofinvolvement would not fulfill their ex-pectations and that "a foreseeable consequence of the mate-
. rialization of that risk was that it would no longer be possi-ble to undertake [themselves] the vindication of[their] in-terests."
CLI-88-12,28 NRC at 609, quoting River Bend, ALAB-444,6 NRC at 797.
Thus, the State's purported reliance on Castle Rock to pursue the issues Castle Rock had raised is completely irrelevant and, under well-established Commission prece-dent, cannot provide good cause for the State's late adoption of Castle Rock's conten-tions. Having totally failed to demonstrate good cause for the late readmission of Castle Rock 17 and 20, the contentions must not be readmitted absent a compelling showing by the State on the other late-filing factors. Sg Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-29,48 NRC _,, slip op, at 12 (1998). The State's cursory treatment of those factors here falls far short of such a showing.
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3 First, the State does not show that it will assist in developing a sound record.' The State names only one potential witness with respect to Castle Rock 17 and 20, Dr. Res-nikoff(whom the State has identified for numerous other contentions as well).' But other than to generally allude to his ability to testify about transportation attematives, the State fails to identify what expertise he would bring to bear on Castle Rock 17 and 20, much less providing a proposed summary of his testimony. The State also generally alludes to
" knowledgeable experts within State government" from whom it " intends to present tes-timony," State Resp. at 14, but it fails to identify a single such expert, much less provide any summary of proposed testimony from any such experts that would be relevant to Castle Rock 17 and 20.5 Such general proffers of persons potentially knowledgeable about the issues are far from sufficient to make the necessary showing of support for the admissibility oflate filed contentions. See LBP-98-29,48 NRC at _, slip op. at 12-13.6 Second, the readmission of Castle Rock 17 and 20 would clearly broaden the proceeding in that it would add distinct futual issues to be litigated. Further, the State's 8 To satisfy this factor, a petitioner should,"wFh as much particularity as possible,' identify its proposed witnesses, and summarize their proposed test mony.'" LBP-98-7,47 NRC at 208 (citations omitted).
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- S3 tate of Utah's Contentions at 39,42,52,72,142, and 144, dated November 23,1997 (hereinafter S
" State Contentions"); see also Prehearing Tr at 308.
8 Moreover, neither Castle Rock (nor the State) identified any knowledgeable State officials with respect to Castle Rock 17 and 20 in their lists of knowledgeable persons for informal interviews.
- With respect to its Low Rail Contention on wildfires, the State had submitted an affidavit from a forestry ecosystem manager in support of the contention and asserted that other, unnamed experts would be avail-able to support its position on the contention. The Board found that this proffer fell" considerably short of the specificity regarding witness identification and testimony summaries the Commission has indicated is needed if this factor is to provide strong support for admissibility." Id; at 13 (citation omitted). The State's proffer here is far less than its proffer on the Low Rail wildfire contention which the Board found "[ajt best
... provide [dj very weak support in the admissibility balance." Id. at n. 5 (emphasis added).
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statement that the parties have been on notice regarding "the scope of the issues" to be j
litigated, State Resp. at 15, is entitled to no weight here. See South Texas, ALAB-799, l-21 NRC at 382 (rejecting argument that adopting the withdrawing intervenor's conten-L l
- tions would merely continue "an inquiry into issues [the applicant] knew would be ex-l plored"). Thus, these two factors (contribution to the record and broadening of the is-sues) weigh against readmitting Castle Rock's contentions.
Third, the State's assertion that it has no other means to protect its interests that l
are subsumed in Castle Rock 17 and 20 State Resp. at 13-14, should also be entitled to L
little or no weight here, in that the State chose the interests it wished to litigate when it L
l originally filed its contentions, rge South Texas, ALAB-799,21 NRC at 383-84, which
. did not include the interests it now attempts to articulate at length here for the first time in i
this proceeding.' In any event, these factors,10 C.F.R. @ 2.714(a)(1)(ii) and (iv), carry less weight under the Commission's balancing test than the third and the fifth factors, L
LBP-98-7,47 NRC at 208, which as discussed clearly weigh against admission here.
l In short, the remaining four factors weighed together militate against granting the i
State's late-filed motion, and clearly, therefore, do not make the compelling showing re-j quired to overcome the State's lack of good cause. IIence, the State's attempt to obtain the readmission of Castle Rock 17 and 20 must be denied.
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' Moreover, some of the issues raised by the State in the discussion of its purported interests are not even contained in Castle Rock 17 and 20 as admitted by the Board. These entirely new issues are: (1) popula-tion distribution (dismissed by the Board, LBP-98-10,47 NRC 288,297-98 (1998)); (2) impact on Deseret Peak (also dismissed); and (3) impact on State lands. Compare State Resp. at 12-15 with LBP-98-7,47 l
NRC at 221-23 and Castle Rock Contentions at 56-60. On these entirely new issues, the State's showing of good cause, contribution to the record, and the absence of delay or broadening is even more deficient.
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O B.
No Justification for Late Readmission of Consolidated Contentions The State also argues that it must be allowed to adopt, en toto, Castle Rock's pre-viously admitted contentions consolidated by the Board with the contentions of the other intervenors on the grounds that (1) some of the contentions are " encompassed by or ex-tremely similar to contentions sponsored by" the State or the Confederated Tribes, State Resp. at 4; (2) the State satisfies the late-filed standard, id. at 5,8-10; and (3) some of Castle Rock's contentions are admissible as new bases for previously admitted conten-tions of the State and Confederated Tribes, Lat 7-8. None of these arguments has merit.
1.
The Scope of the Consolidated Contentions As PFS demonstrated in its response, upon the withdrawal of an intervenor, the contentions sponsored by the intervenor must be withdrawn as well. PFS Resp. at 3.
Also, as the Board has recognized,"[t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases."' Thus, unless the State can obtain the readmis-sion of Castle Rock's contentions (which it cannot as set forth below), those portions of the consolidated contentions, including their bases, that were solely set forth in Castle Rock's contentions are completely eliminated from this proceeding. Accordingly, all fu-ture litigation must be confined to the scope of the contentions, and their related bases, of the remaining intervenors - the State, Confederated Tribes and OGD - that were admitted by the Board.
' LBP-98-7,47 NRC at 181 (quoting Public Service Company of New Hampshire (Seabrook Station, Units I and 2), ALAB-899,28 NRC 93,97 (1988)). Counsel for the State has recognized this as well: "We un-derstand that the contention is limited by the basis that we present." Prehearing Tr. at 37; id. at 43.
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The State argues, however, that all the issues in the consolidated contentions must be retained because they are " inextricably intertwined" and it is impossible to " parse out"
. the contributions from different intervenors. State Resp. at 5-6.' The State is wrong in this argument. As PFS showed in its response (PFS Resp. at 6-8), the issues that PFS as-serts should be withdrawn are factually distinct from the other issues in the consolidated contentions. The State has failed to show otherwise in its response, specifically:
The State's claim that Utah S (Decommissioning) completely encompasses part of Castle Rock Contention 7, State Resp. at 4, is wrong. Utah S did not address non-routine expenses other than those associated with accidents. Sg PFS Resp. at 7-8.
The State's claim that Castle Rock 6 is identical to Utah K (except for "the ef-fects of wildfires"), State Resp. at 5, is also wrong. Utah K asserted threats to the ISFSI from one list of distinct facilities, while Castle Rock 6 asserted threats from a different list which only partially overlaps with the State's list.
_See PFS Resp. at 6-7. Specifically, Castle Rock claimed an impact on the IS-FSI from the "the Department of Defense Chemical Weapons Incinerator, the Tooele Army Depot,... APTUS Hazardous Waste Incinerator, Laidlaw Haz-ardous Waste Incinerator and Landfill, and Enivrocare of Utah Low Level Waste disposal Facility," which the Board admitted as part of Castle Rock 6.
LBP-98-7,47 NRC at 214. The State did not allege any of these facilities to i
l have an impact on the ISFSI (s_ee State Contentions at 72-79) and thus none of e
them were admitted as part of Utah K insofar as any claimed potential impact on the ISFSI was concerned. See LBP-98-7,47 NRC at 190."
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' The State asserts this argument in an attempt to support its claim of good cause for lateness in seeking the l
readmission of Castle Rock's contentions. See State Resp. at 5-6. The argument, however, has nothing to l
l do with good cause, which addresses the excuses for the lateness of a late filed contention or petition. S_ee e
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, i NRC 273,275 (1975).
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PFS understands that the "Wendover Air Force Bombing Range," admitted as part of Castle Rock 6, is part of the of" Utah Test and Training Range" admitted as part of Utah K. LBP-98-7,47 NRC at 190,214.
Thus, there is overlap between Castle Rock's and the State's lists with respect to this facility as well as Dugway Proving Ground and Hill Air Force Base, l_d.
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" The State did claim that shipment of hazardous materials with respect to certain of these facilities did constitute a potential threat to the Rowley Junction ITP - in contrast to the ISFSI - and they were admitted l
. in this limited respect only. See LBP-98-7,47 NRC at 190; see also PFS Resp. at 7 n. 9.
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The State's claim that "any discrete part of the Hydrology contention attrib-uted to Castle Rock is contained in Utah 0," State Resp. at 6, is wrong in that the State did not mention in its contention or basis contamination from fire-fighting (which is the only aspect of Board Contention 11 that PFS claims should be dismissed). See PFS Resp. at 7.
1 Claims regarding alleged requirements relative to the Skull Valley Band's Clean Water Act permitting authority and the applicability of Utah Division of Air Quality Rules are raised only in Castle Rock 12 and not in Utah T and therefore should also be dismissed. See PFSF Resp. at 8."
In short, the issues sponsored solely by Castle Rock in its contentions and bases, as identified above by PFS are factually distinct from those of the other intervenors and must be eliminated from the Board's consolidated contentions.
2.
Readmission Under the Late-Filed Contention Test The State's attempt to obtain readmission of the portions of the consolidated contentions sponsored solely by Castle Rock must be denied because the State has failed to meet the test for the admission oflate-filed contentions. The State's first argument that it has good cause because Castle Rock's notice of withdrawal was the first " formal no-tice" the State received that Castle Rock would not vigorously pursue the issues it had raised, State Resp. at 5, must be rejected for the same reasons as stated above.
The State also asserts that it has good cause to adopt Castle Rock's portions of the consolidated contentions "because, having been given lead on all the contentions, the State has an interest equivalent to co-sponsorship." State Resp. at 8 (citing Public Serv-i2 PFS had also argued in its response (PFS Resp. at 6) that Subparts 2 and 10 of Board Contention 3 (Fi-nancial Assurance) should be dismissed as being sponsored solely by Castle Rock. Both the State and the NRC Staff point out, however, that Confederated Tribes has incorporated by reference Castle Rock Con-tention 7 concerning financial qualifications. Sy State Resp. at 7; NRC Staff's Response to Castle Rock's Notice of Withdrawal at 4 January 5,1999. Accordingly, Subparts 2 and 10 would remain part of Board Contention 3, but sponsored solely by Confederated Tribes and not the State.
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ice Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-22,24 NRC 103 (1986)). The State further claims that, as such, it has invested " substantial resources in hiring experts and developing expertise... in investigation and research," and in other aspects oflitigating the consolidated contentions such that it "would be unfair at this late stage" for the Board to dismiss the Castle Rock specific issues. Id. at 9.
Neither argument provides the State with good cause. At the outset, the State's position differs dramatically from that in Seabrook. The intervenor there was permitted to adopt the contention of the withdrawing intervenor because it was a " joint intervenor" and "co-sponsor" of the contention, as the result of having incorporated the contention by reference in a contention ofits own. Seabrook, LBP-86-22,24 NRC at 104,106 n.9. The State is not such a co-sponsor here. The Board specifically denied its belated attempt to incorporate Castle Rock's contentions by reference. LBP-98-7,47 NRC at 182. This was in the same order in which the Board designated the State as lead party for most of the consolidated contentions. See id. at 242-43. Thus the status of"co-sponsor" is le-gally distinct from that of" lead party" and the State's assertion of good cause is invalid."
Further, neither the State's status as " lead party" nor the Board's consolidation of the contentions, undertaken by the Board under its inherent authority to control the con-
" The State also asserts that there was no indication that all of Castle Rock's litigable issues have been sat-isfied and that therefore it is important for the Board to hear those issues. State Resp. at 9 n.8. First, Castle Rock expressly requested that all its contentions be withdrawn. See Notice of Withdrawal. Second, an ar-gument identical to the State's was rejected in South Texas, ALAB-799,21 NRC at 382 ("there is no automatic right to adjudicatory resolution of environmental or safety questions associated with an operating i
license application"); compare 10 C.F.R. { 72.46(a)(a hearing is not automatically required on ISFSI li-cense applications).
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duct of the proceeding, gives the State the right to litigate the contentions ofother inter-venors. See PFS Resp. at 3-5. In so arguing, the State is unfairly attempting to take ad-l vantage of, and to extract legal rights from, the Board's wholly appropriate exercise ofits
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authority t'o provide for the orderly conduct of this proceeding.
' Moreover, while the State asserts that it has hired experts to litigate issues spon-sored by Castle Rock and otherwise invested substantial resources, it has failed to iden-tify any such experts - even in the context of showing that it will make a strong contribu-i tion to the record on Castle Rock's contentions. S3 tate Resp. at 10." Nor has the S
State alleged that it would not have hired these same unidentified experts to assist solely with its own contention. Further, formal discovery has not yet begun, nor has the State asked in informal discovery a single question that relates to the portions of the Castle Rock contentions identified in Section B.1, supra. Also, while the Board charged the lead parties with the conduct of discovery generally, all " involved parties" are obligated to produce documents concerning the contentions that they incorporated or for which they had sponsored issues. LBP-98-7,47 NRC at 244-45. And, indeed, even non-parties can be required to produce relevant documents under subpoena. In, short, the State greatly exaggerates the resources it claims to have expended and the resulting unfairness."
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" As best as PFS can discern, of the list of knowledgeable persons provided by the State as part ofinformal discovery, it has identified no outside experts that relate to the specific portions of the Castle Rock conten-tions identified in Section B.1, supra, which PFS claims should be dismissed.
" Moreover, the State was fully aware that if Castle Rock withdrew the State might well not be allowed to 1
adopt Castle Rock's contentions unless the State successfully incorporated Castle Rock's contentions by I
reference. S_ee Tr. at 89. Given that the Board denied the State's request for incorporation at the same time e
it was appointed lead party, the State's claimed reliance on being lead party and the alleged resulting ex-penditure of resources is not only legally irrelevant (sg Section A supra) but also factually misplaced.
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The State also claims that it has good cause because the adoption of Castle Rock's contentions would " preserve the status quo" and that " chang [ing] the structure of the pro-
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ceeding now would create discord, confusior, and undermine the process." State Resp. at i
9-10. These arguments also lack merit. First, the Commission has a policy of encourag-l l
ing the settlement between parties, not preserving the status quo before the withdrawal of i
an intervenor Second, the removal of Castle Rock's issues from the consolidated con-1 tentions would create no confusion, for as PFS has previously shown, the issues that l
should be removed are factually distinct from the other issues in those contentions. "
l Finally, the State's cursory treatment of the remaining four factors - in a single
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l seven line paragraph - plainly fails to provide a compelling showing to overcome its lack of good cause. The State does not show that it will assist in developing a sound record, in l
l that it identifies no witnesses and presents no proposed testimony regarding the portions 1
of the consolidated contentions sponsored solely by Castle Rock. Further, the litigation of those issues will clearly broaden the proceeding. Thus, a compelling showing by the State on the remaining factors is clearly lacking and the portion of the consolidated con-tentions sponsored solely by Castle Rock, see Section B.1, supra, must be dismissed.
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See South Texas, ALAB-799,21 NRC at 383; 10 C.F.R. Q 2.759; Statement of Policy on Conduct of Li-censing Proceedings, CLI-818,13 NRC 452,455 (1981); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12,48 NRC 18,19 (1998;; see also note 13, supra (there is no automatic right to the adjudication ofissues in an ISFSI licensing proceeding).
" The State's suggestion that failing to readmit Castle Rock's contentions would " change the structure of j
the proceeding," State Resp. at 10, is legally erroneous. The refusal to amend or add bases to a contention does not change the structure of an NRC licensing proceeding. See Public Service Company of New Hampshire (Seabrook Station, Units I and 2), ALAB-906,28 NRC 615,618-19 & n.18 (1988).
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3.
Readmission as New Bases for Previously Admitted Contentions The State also seeks the readmission of those portions of the consolidated conten-tions set forth solely in Castle Rock's contentions as "new bases to the State's admitted contentions." See State Resp. at 7-8. The only authority cited by the State for its "new bases" test is a licensing board decision, Georgia Power Company (Vogtle Electric Gen-erating Plant, Units I and 2), LBP-94-22,40 NRC 37 (1994), which'in turn cites only an-other licensing board decision for authority. But these two unreviewed decisions cannot j
supplant the Appeal Board's binding decision in South Texas, which clearly requires ap-i plying here the late-61ing test set forth in 10 C.F.R. 2.714(a)(1) as opposed to a "new bases" test articulated in Vogtle (for which no provision of the regulations is cited).
i Such a result constitutes sound policy as well. A party with a broadly worded contention that is supported and, in fact, defined by narrow, specific bases, should not be allowed to add bases withdrawn by a departing intervenor, and thereby expand the scope of the contention, without satisfying the late-filing test. The Board has recognized the Commission's clear policy: contentions must be specific in order to put the parties on notice of the allegations against which they must defend and hence, when an intervenor puts forth a broad, sweeping contention, the litigable scope of the contention is limited to its specific bases. See LBP-98-7,47 NRC at 181 (quoting Seabrook, ALAB-899,28 NRC at 97). PFS has demonstrated that the issues that it seeks to have removed from the
'8 Appeal Board decisions constitute binding precedent, Sequoyah Fuels Corporation (Gore, Oklahoma Site), CLI-94 11,40 NRC 55,59 n.2 (1994), while unreviewed licensing board decisions do not. Baltimore Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units I and 2), CLl-98-25,48 NRC _, slip op. at 13 n.3 (1998).
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=b consolidated contentions are factually distinct from the others therein. Thus, the State must not be allowed to obtain the readmission of those issues and expand the scope ofits contentions through the "new bases" process.
Moreover, in any event, the State fails to satisfy the test for admitting new bases applied in Vogtle. First, the board there required the new bases to be "within the scope of an admitted contention." LBP-94-22,40 NRC at 39. Here, Castle Rock's issues are no longer within an admitted contention, in that (1) they must first be dismissed and then the
' State may seek their readmission, and (2) PFS has shown that they are factually distinct from the other issues in the consolidated contentions. Sg Section B.1, supra.
j Second, the Vogtle board looked to whether the new bases were (1)" timely" and (2) whether they "present[ed] important information regarding a significant issue." LBP-94-22,40 NRC at 39. When the board applied the test, it defined " timely" as "whether (the inte-venor] acted with reasonable promptness in filing a new basis before the Board, based on the date on which... he first became aware of the basis for this contention."
Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), LBP-94-27, 40 NRC 103,106 (1994). Here, it is undeniable that the State has been aware of Castle Rock's contentions and bases for over a year. Yet the State never sought to have them added to its admitted contentions as new bases. The State's attempt here is in no way
" reasonably prompt" and thus it must fail the timely test as set forth in Vogtle.
Further, the State has not shown that the asserted new bases are particularly sig-nificant other than to state that they were part of an admitted contention. State Resp. at 8.
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This is insufficient. The " significance" test in Vogtle has its roots in the test for reopen-l ing the record in an NRC hearing." That test is stricter than the test for the admission of J
a contention.2 Thus, the State's showing does not meet the Vogtle significance test. Ac-b cordingly, even if the Vogtle test were good law, the State has failed to pass that test.
CONCLUSION For all the reasons set forth above, PFS respectfully requests that the Board dis-i miss of Castle Rock's Contentions 17 and 20 (as well as Castle Rock Contention 21 which the State did not seek readmission) and those portions of Board Contentions 7,11, 13, and 14 which were solely sponsored by Castle Rock.
j Respectfully submitted, J
&Q Jay E. Silberg Emest L. Blake, Jr.
Paul A.Gaukler SIIAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington,DC 20037 (202) 663-8000 Dated: January 15,1999 Counsel for Private Fuel Storage L.L.C.
Document #: 703700 v.I
" See Vogtle, LBP-98-22,40 NRC at 39 (citing Consumers Power Company (Midland Plant, Units I and 2), LBP-84-20,19 NRC 1285,1291,1296 (1984)(which cites Consumers Power Company (Midland Plant, Units I and 2), LBP-83 50,18 NRC 242,246-48 (1983)).
2' See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486,8 NRC l
9,21 (1978)("the proponent of a motion to reopen bears a heavy burden"); Louisiana Power & Light l
Company (Waterford Steam Electric Station, Unit 3), ALAB-753,18 NRC 1321,1324 (1983)("A success-l ful movant must provide with its motion more than ' bare allegations or simple submission of new conten-tions."').
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s DOCKETED USHRC I
UNITED STATES OF AMERICA JM139 p 3 27 oo i
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board OR L _
Wize
'l2 In the Matter of
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ADJUD'n
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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 C ERTIFICATE OF SERVICE I hereby certify that copies of the " Applicant's Reply to State of Utah's Response to Castle Rock's Notice of Withdrawal" were served on the persons listed below (unless otherwise noted) by -mail with conforming copies by U.S. mail, first class, postage prepaid, this 15th day of Jat try 1999.
G. Paul Bollwerk III, Esq., Chairman Dr. Jerry R. Kline Administrative 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 Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GPB@nrc. gov e-mail: JRK2@nrc. gov Dr. Peter S. Lam
- Adjudicatory File i
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 l
e-mail: PSLSyrc. gov l
Catherine L. Marco, Esq.
- Charles J. Haughney l
Sherwin E. Turk, Esq.
Acting Director, Spent Fuel Project Office l
Office of the General Counsel Office of Nuclear Material Safety and l
Mail Stop O-15 BIS Safeguards U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 e-mail: pfscase@nrc. gov
1 L
Denise Chancellor, Esq.
Joro Walker, Esq.
Assistant Attomey General Land and Water Fund of the Rockies i
Utah Attorney General's Office 165 South Main, Suite 1 160 East 300 South,5* Floor Salt Lake City, UT 84111 P.O. Box 140873 e-mail: joro61@inconnect.com l
Salt Lake City, Utah 84114-0873 e-mail: dchancel@. state.UT.US John Paul Kennedy, Sr., 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 Salt Lake City, Utah 84105 e-mail: reondit@lawfund.org e-mail: john @kennedys.org l
Clayton J. Parr, Esq.
Danny Quintana, Esq.
i Castle Rock, et al.
Skull Valley Band of Goshute Indians Parr, Waddoups, Brown, Gee & Loveless Danny Quintana & Associates, P.C.
I85 S. State Street, Suite 1300 50 West Broadway, Fourth Floor P.O. Box i1019 Salt Lake City, Utah 84101 Salt Lake City, Utah 84147-0019 e-r. JI: quintana @xmission.com e-mail: karenj@pwlaw.com 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.
Attention: Rulemakings and Adjudications Washington, D.C. 20009 Staff l
e-mail:Deurran.HCSE@zzapp.org e-mail: HEARINGDOCKET@NRC. GOV (Original and two copies)
- By U.S. mail only g
l aul Gauki'r i
e Document #: 704155 v.!
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